20 Dec 2011 : Column 1661

20 Dec 2011 : Column 1661

House of Lords

Tuesday, 20 December 2011.

2.30 pm

Prayers-read by the Lord Bishop of Birmingham.

Leave of Absence

2.35 pm

The Lord Speaker (Baroness D'Souza): My Lords, the Conference of Speakers and Presiding Officers of the Commonwealth will be held in Trinidad and Tobago in January 2012. Accordingly, I seek leave of absence from your Lordships' House on 10 January.

Economy: Private Capital Investment

Question

2.36 pm

Asked By Lord Empey

To ask Her Majesty's Government what additional fiscal measures they will take to encourage private capital to invest in manufacturing or tradable services in the United Kingdom.

The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, the Autumn Statement announced several measures which encourage private capital investment: an above-the-line research and development tax credit from 2013, ensuring that the relief continues to attract large-scale investment in innovation; 100 per cent capital allowances for six enterprise zones; and a new seed enterprise investment scheme in 2012 to help early-stage companies. The draft Finance Bill also set out further steps in wider corporation tax reform.

Lord Empey: I am sure that the Minister will agree that the best way of achieving long-term financial and strategic security for the United Kingdom is to strengthen our international trading position. A significant increase in our manufacturing capability is one of the best ways of achieving this. Can the Minister tell the House whether the Government have any plans to offer increased fiscal incentives to encourage businesses, especially SMEs, to invest in R&D spending? Can he further advise whether any additional fiscal incentives are being considered that will create sufficient confidence in the private sector to boost investment in manufacturing?

Lord Sassoon: My Lords, the first thing to remind the House is that the changes already made in corporation tax and the capital allowance regime will in total, in 2015, contribute an extra £700 million in reduced taxes to the manufacturing sector. For example, £1 billion of R&D relief was claimed in 2009-10, including by 7,400 SMEs. So this Government are indeed taking considerable targeted action to support our manufacturers, including SMEs, whether by way of encouraging R&D or through other aspects of the corporation tax regime.

20 Dec 2011 : Column 1662

Lord Barnett: My Lords, the Question asked what additional facilities the Government have provided. In practice, would the Minister agree that there are no additional facilities outside the deficit reduction plan? Indeed, the measures that he has already mentioned were well taken care of when the OBR reported that growth will be down to 0.7 per cent, which is hardly helping. In the light of the current economic situation, will the Government consider real, additional facilities outside the deficit reduction plan?

Lord Sassoon: My Lords, to be clear, the three measures that I mentioned in my opening Answer were indeed new and additional measures, the costings of which are given in the Autumn Statement.

Lord Lawson of Blaby: Does my noble friend expect that the important changes in the relationship with the Royal Bank of Scotland that the Chancellor of the Exchequer announced yesterday might lead to more lending by the Royal Bank of Scotland to small and medium-sized enterprises?

Lord Sassoon: My Lords, that is a very interesting question. The board of RBS has made it clear that it is going to concentrate its business on its corporate and personal banking and therefore, certainly relative to its total business, it will indeed achieve that.

Lord Anderson of Swansea: My Lords, will the new enterprise zones be wholly or mainly limited to the manufacturing sector?

Lord Sassoon: My Lords, the enterprise zones are not limited to any particular sector.

Baroness Kramer: My Lords, the Minister will be aware that the banking industry is not serving this aspect of investment particularly well and that barriers to entry are limiting new banks. Is he therefore observing the growth of peer-to-peer lending and will he give us some assurance that those new lenders entering the market will be appropriately regulated but not to the point of being stifled?

Lord Sassoon: My Lords, we are very interested in anything that keeps credit flowing. However, although my noble friend is very good at reminding us of that issue, we are getting a bit far away from fiscal measures.

Lord Eatwell: My Lords, I am sure that the Minister will agree with the noble Lord, Lord Empey, that, however low interest rates may be and whatever fiscal incentives may be in place, ultimately investment is determined by business confidence. Is he aware that the Institute of Chartered Accountants in England and Wales produces an index of business confidence? In its latest report, it says:

"The Confidence Index has suffered its largest quarterly decline since the survey began".

The survey began in 2004. Is it not clear that the destruction of business confidence is the main outcome of the Government's economic policies?

20 Dec 2011 : Column 1663

Lord Sassoon: My Lords, the best measure of the expected effects of the fiscal measures that I outlined in my first Answer is what business organisations have had to say. For example, the EEF, the engineering employers organisation, has said that the R&D tax credit,

"will send a powerful signal that government intends to make the UK the number one choice for R&D investment and is another step on the road to making the UK the most competitive tax system in the G20".

I could give the noble Lord similar quotes from the CBI and others.

Baroness Wheatcroft: My Lords, large companies are sitting on almost unprecedented amounts of cash rather than investing it. Would the Minister consider means of encouraging those companies to invest in smaller companies and nurture them?

Lord Sassoon: My Lords, we are always open to new and imaginative suggestions. Large companies have been talking to us positively about how to develop the supply chain and encourage their smaller suppliers.

Lord Brookman: As one of those turkeys not voting for Christmas, I ask the Minister to put to bed for ever a comment made to me some years ago. I come from manufacturing, as many of us on these Benches do, but I was told that it was dead and we were going to sustain our future by banking, the service sector and finance. Will the Minister confirm that manufacturing has a future in this country?

Lord Sassoon: Indeed, and I am very happy to say it and say it again. We have a manufacturing sector in the UK that is close in size to that of France. We have exporters that have grown their exports by 15 per cent since the election. Manufacturing and exporting are alive and well in this country.

Justice: Personal Injury Cases

Question

2.43 pm

Asked By Lord Hoyle

To ask Her Majesty's Government why they are proposing that personal injury claimants pay part of their legal costs.

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, the Government are reforming no-win no-fee conditional fee arrangements to return them to the basis on which they were first introduced in the 1990s. CFAs worked well then, and personal injury claimants were liable to contribute to their lawyer's success fee if the lawyer charged one. However, CFA claimants no longer have an interest in the costs run up on their behalf. Our reforms will bring proportion to civil litigation costs while preserving access to justice.

Lord Hoyle: Does the Minister not understand that many people who have suffered serious and maybe life-threatening injuries will be deterred from seeking compensation? Far from saving £50 million, as has been suggested, recent Parliamentary Answers have

20 Dec 2011 : Column 1664

shown that this measure will cost the Government over £100 million, which comprises legal fees, additional compensation and loss of income from recovered treatment fees from insurers? This is a folly. It will deter ordinary people from going forward to seek the compensation that is due to them.

Lord Wallace of Tankerness: My Lords, the Government do not accept that the measure will deter people from coming forward. As I indicated, the reforms brought in by my noble and learned friend Lord Mackay of Clashfern in the 1990s, which introduced the no-win no-fee conditional fee agreements, allowed people suffering from personal injuries to come forward and pursue their claims. We are not satisfied that at present there is a proper proportion with regard to the amount of fees charged, particularly where the claimant has no interest in ensuring that they are kept within modest means. The system has got out of proportion; our reforms seek to bring it back into proportion.

Baroness O'Loan: Is the Minister satisfied that there will be equality of access to justice for the very poorest victims of clinical negligence in circumstances in which they must bring their action against public authorities, whose defence will be funded by the state?

Lord Wallace of Tankerness: My Lords, I perfectly recognise that the issue of clinical negligence is one that many Members of your Lordships' House raised during Second Reading, and I am sure that it will be fully debated when we reach the relevant stage in Committee. We say that "after the event" insurance premiums should be allowable in cases of clinical negligence. Indeed, we are seeking through the NHS and those who represent claimants to try to ensure that, where there can be joint reports and better agreements between the two sides, that should be done. I hope that we can make progress on that but no doubt it will be fully debated in the weeks to come.

Baroness Turner of Camden: Does not the Minister think it very unfair that somebody who has been injured through somebody else's fault, and is suing on the basis that someone else is at fault, should lose some of their compensation even though it is not their fault?

Lord Wallace of Tankerness: My Lords, success fees are intended to cover the risk of not winning and the lawyers not being paid. In many cases where there is personal injury there is a very low risk of that happening. Indeed, it begs the question whether it is necessary for solicitors to charge success fees at all in these situations. However, as my noble friend Lord Gold pointed out at Second Reading, claimants who fund themselves often do not receive the full amount of their compensation. It seems rather odd, to put it mildly, that those who are funded by the taxpayer should get the full amount back but those who fund themselves do not recover the full amount of their compensation.

Lord Faulks: My Lords, I understand that there is an intention to bring in damages-based agreements whereby a claimant will have to pay some of their costs out of the damages they receive. The compensation

20 Dec 2011 : Column 1665

factor is that there will be a 10 per cent increase in general damages for pain and suffering and loss of amenity, which is currently assessed by judges on an ad hoc basis and according to the Judicial Studies Board guidelines. However, bereavement damages have long troubled people as being far too low. They are £11,800, which can be split between all those who are bereaved as a result of an accident. Do the Government have any plans to increase the size of bereavement awards, particularly in view of the fact that other awards may be increased by 10 per cent under the new regime?

Lord Wallace of Tankerness: My Lords, my noble friend raises the important point about damages in respect of bereavement. As he noted in his question, conventionally these matters have been dealt with by the judiciary. Certainly, the proposed 10 per cent increase will be taken forward by the senior judiciary. I will ensure that the important point my noble friend makes regarding damages for bereavement is drawn to its attention.

Lord Thomas of Gresford: My Lords, the Minister will know that the NHSLA-that is, the legal arm of the NHS-opposes these changes and desired that legal aid should continue in clinical negligence cases. That was its answer to the consultation process. What is its current position?

Lord Wallace of Tankerness: My Lords, I am not aware that it has made any further pronouncements on the matter. However, the Government believe that a conditional fee arrangement backed by ATE insurance will ensure that the vast majority of clinical negligence claims will be able to be investigated and that the ATE insurance market will adapt to the new arrangements. It is also important to point out that in Clause 9 of the Bill there is an exceptional funding scheme, which may well be relevant in profoundly serious cases where clinical negligence arises. However, I am sure that my noble friend will make a contribution on these matters when this is debated, I hope next month.

Baroness Seccombe: My Lords, does my noble friend agree that people in minor accidents are sometimes encouraged to find that they have whiplash, which encourages a lawyer to say that they must be legally represented?

Lord Wallace of Tankerness: My Lords, I made the point earlier that there is little or no risk involved in many cases, but I also think-and this relates to my noble friend's point-that some cases in which a claimant is funding their own legal costs may well never come to court, whereas if all their fees are paid for them it may be easier to pursue the claim.

Cyprus: EU Presidency

Question

2.50 pm

Asked By Lord Maginnis of Drumglass

To ask Her Majesty's Government what they consider will be the longer-term effect of the Republic of Cyprus assuming the presidency of the European Union in July 2012.

20 Dec 2011 : Column 1666

The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, we are confident that the Republic of Cyprus will carry out its presidency responsibilities as defined by the Treaty on European Union. It is for the Government of the Republic of Cyprus to set the objectives for its presidency of the European Union from July to December 2012.

Lord Maginnis of Drumglass: However, my Lords, have Her Majesty's Government considered the consequences for the United Kingdom when it endorses an EU presidency by a bankrupt nation that has for 40 years maintained a dishonest and discriminating policy towards Turkish Cypriots and has survived under a leadership that has recently been defined by 90 per cent of its own people-Greek Cypriots-as corrupt? What will that say about our national values?

Lord Howell of Guildford: I think the whole House recognises that criticisms can be levelled at a number of countries, including the Republic of Cyprus, which, in the list I have here, comes 30th out of 191 countries in Transparency International's examinations of levels of corruption, and comes 16th out of 30 countries in the European Union. There is obviously a problem there which I think is recognised in the republic itself. As to the future presidency, it is our hope that there will be decisive progress in the coming months towards a settlement that everyone in the north, Turkey, Greece, the Republic of Cyprus and indeed this country desires. If we can move forward in that way, everyone benefits.

Baroness Hussein-Ece: My Lords, I declare an interest in that I have just returned from a visit to Cyprus that was funded by the north Cypriot Government. Is the Minister aware that the Turkish Cypriot north set up and established the Immovable Property Commission in 2006, thus allowing mainly Greek Cypriots to get compensation for properties that they had lost? To date, the commission has received 2,629 applications and has paid out more than £63 million. As the Minister will know, this has been ratified by the European Court of Human Rights. Are Her Majesty's Government aware that no such local remedy is available for Turkish Cypriots to claim for properties they have lost? Hundreds of people have had to go to the European Court of Human Rights to claim their compensation. Is this acceptable for an EU country that is about to take over the presidency of the EU? Should it not set an example?

Lord Howell of Guildford: We want to see progress on all sides on this vexed question of property. The commission that my noble friend mentions is making a positive contribution. Ultimately, we believe that the whole property issue can be solved only as part of a comprehensive settlement. We certainly support any efforts to resolve the issue, whether in the north or in the republic. I cannot say more than that at the moment.

Lord Harrison: My Lords, I, too, declare a pecuniary interest as having returned from northern Cyprus on a visit sponsored by its Government. Does the Minister recall a Question that I laid earlier when I asked the British Government to use their best interests to bring together both sides so that the presidency will bring

20 Dec 2011 : Column 1667

renown to the island of Cyprus and to its two peoples? Unfortunately, there is little working together for a common purpose, as was demonstrated during our visit.

Lord Howell of Guildford: I do indeed recall the noble Lord's earlier Question in which he rightly expressed the hope, which we frankly all share, for decisive progress. The next meeting in the UN process under the Secretary-General of the United Nations takes place at the end of January, and we all hope for further progress. At the latest meeting, the stance was not totally negative but there was not much progress, and we hope that they will do better this time. The gains for all sides from a successful advance in the UN process are so enormous that one longs to see it move forward, but so far, I am afraid, we have been disappointed.

Lord Hannay of Chiswick: My Lords, perhaps the Minister will forgive me if I take the opportunity to wish the noble and learned Lord, Lord Howe of Aberavon, a happy birthday, he having been a Foreign Secretary who worked tirelessly for a solution of the Cyprus problem. Does the Minister agree that it would be rather useful if the Governments of both Cyprus and Turkey reconsidered their attitude towards each other? The petulance with which the Government of Turkey are approaching the Cyprus presidency would seem to be barely fitting for a rising nation of great importance to us. As for the Government of Cyprus, their blocking Turkey joining the EU to work on measures against Syria and their blocking of many of the chapters of Turkey's accession is entirely counterproductive for their own interests. Would not some reconsideration by both sides of their attitude towards each other be in order?

Lord Howell of Guildford: First, I warmly endorse the noble Lord's wishes for the happy birthday of my noble and learned friend Lord Howe of Aberavon. I think I can speak on behalf of Her Majesty's Government in presenting those congratulations to him on his 86th birthday. That is terrific.

As to the broader points made by the noble Lord, Lord Hannay, he himself has played a significant part in trying to get the parties to take a more reasonable attitude to each other. He is right: the compromise that will emerge from the end of Cyprus's tribulations can be achieved only if there is a more giving and revised attitude on both sides. Very hard lines have been taken up. There has to be compromise, there has to be movement, there has to be some revision of views between the two sides. Then we will make progress. What the noble Lord says must be right, and we have to work for it.

Lord West of Spithead: My Lords, can the Minister confirm that there is no intention to change the status of the sovereign base areas in Cyprus or the military facilities there?

Lord Howell of Guildford: I can confirm that. As the noble Lord knows, there was a recent review of the sovereign bases. A Statement was made to Parliament

20 Dec 2011 : Column 1668

indicating that the review has been completed. It has not been fully published, but its broad conclusions are established, which are that the bases are vital and will certainly continue. There was, of course, already the view that in the event of a settlement and the unity of Cyprus, 50 per cent of the sovereign base area would be part of the settlement and would be available to help it. Generally, the commitment is as firm as it has always been that the sovereign bases are important and will remain.

Lord Pearson of Rannoch: My Lords, on the other hand, can we not look forward to a happy and fruitful presidency of Cyprus, which after all shares so many of its attributes with the bloated Commission in Brussels?

Lord Howell of Guildford: The noble Lord is tempting me into wider issues and debates, which I will vigorously resist.

Bovine Tuberculosis

Question

2.59 pm

Asked By Lord Krebs

To ask Her Majesty's Government what scientific evidence they have used in developing their proposals for controlling bovine tuberculosis by culling badgers.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach): My Lords, evidence of the effect of badger culling on bovine TB incidence rates comes principally from the randomised badger culling trial. The scientific evidence from the trial suggests that proactive badger culling, done on a sufficient geographical scale in a widespread, co-ordinated and efficient way and over a sustained period of time of at least four years, will reduce the incidence of bovine TB in cattle in high-incidence areas. It is the Government's judgment that these results can at least be replicated by a farmer-led cull using controlled shooting. The two pilots will test our assumptions about the effectiveness, humaneness and safety of this method.

Lord Krebs: My Lords, I thank the Minister for that reply. I should declare an interest as the instigator of the randomised badger-culling trial some years ago. I agree with the Minister that sustained, long-term culling could reduce the incidence of TB in cattle by about 16 per cent, but can he help me with two questions which are puzzling me concerning the Secretary of State's announcement last week in another place? First, this pilot involves two areas. As a scientist, I know of no statistical technique for analysing the results from a trial involving just two areas, so perhaps the Minister could enlighten me on that point. Secondly, the Secretary of State referred to a wider rollout depending on the results of the pilot. Does that mean that the Government would consider rolling out this shooting policy to the 39,000 square kilometres of the English countryside affected by bovine TB, with the implication that one would end up shooting between a quarter and a third of the UK's badger population?

20 Dec 2011 : Column 1669

Lord Taylor of Holbeach: I am grateful to the noble Lord for that supplementary question, and I acknowledge the authority with which he raises these questions. The purpose of the pilots is to evaluate the effectiveness of the process, rather than to provide a scientific appraisal of the cull, which is designed to last over a four-year period, and I think that the noble Lord will understand that. At the bottom of this is the fact that we are hoping to monitor the humaneness and effectiveness of a shooting policy before we roll it out, and I hope that noble Lords will agree that that is right and proper. It is suggested that the pilots should be held over a series of areas, rather than one complete area, as that would defeat the object of trying to find areas that are viable. The pilots will cover an area of at least 150 square kilometres, perhaps extending to as much as 350 square kilometres.

Lord Walton of Detchant: My Lords, as a young doctor I saw the ravages of bovine tuberculosis, particularly in young children, many of whom suffered spinal tuberculosis with paralysis and infection of long bones. As that type of infection disappeared following the widespread pasteurisation of milk and the screening of cattle herds, is the Minister satisfied that a more extensive badger cull would significantly reduce the potential risk of the spread of this infection into the human population?

Lord Taylor of Holbeach: The answer to the risk of bovine TB being transferred to humans is, as the noble Lord mentioned in his question, the pasteurisation of milk. Milk is pasteurised to make it safe for human consumption. We are concerned about the incidence of the disease, which is crippling for cattle and, of course, for badgers, but I think that I can reassure the noble Lord that the purpose of this programme is not the fear of its transfer to humans.

Baroness Mallalieu: My Lords-

Baroness Parminter: My Lords-

Lord Strathclyde: My Lords, we have time. Perhaps we may hear from the noble Baroness, Lady Mallalieu.

Baroness Mallalieu: My Lords, is the noble Lord aware of the desperation of my neighbours on Exmoor, most of whom are under a restriction and are losing cattle at every retest? They are frustrated with science because year after year they have been promised that if they will only wait a little longer there will be an effective oral vaccine. They are still being told that. Is the noble Lord also aware of the welcome for the courage that has been shown by the Defra Ministers in this Government in finally starting to tackle this problem?

Lord Taylor of Holbeach: I am very grateful to the noble Baroness for those comments and I shall convey them back to my colleagues. It is correct to say that, in a 12-month period, in some of the worst areas nearly a quarter of cattle herds are under restrictions. Clearly, that cannot be tolerable. It causes immense stress to farmers, particularly in highly infected parts of the country.

20 Dec 2011 : Column 1670

Baroness Parminter: My Lords, the estimated costs for policing this eradication programme have risen from £200,000 to £2 million per cull area. What share of those costs will Defra meet with the Home Office and what budget lines will be cut in order to take forward this programme, which may well do more harm than good?

Lord Taylor of Holbeach: I would not agree with my noble friend's last comments; I think she is misjudging the situation. I think this is a programme that we have to carry forward. Clearly, we have to allow for policing and Defra has agreed to meet half the costs.

Lord Davies of Oldham: My Lords, is the Minister suggesting that this policy is scientifically based and without controversy? Is he not aware that the approach of culling will occasion great consternation among a very large number of people in this country and, therefore, that it is bound to incur costs for the safety and policing of the project?

Lord Taylor of Holbeach: I think it is very much in the interests of this policy that noble Lords should be prepared to recognise the importance of going ahead with it. I cannot agree at all with what the noble Lord has said.

Procedure of the House

Motion to Agree

3.06 pm

Moved By The Chairman of Committees

To move that the 10th Report from the Select Committee (HL Paper 231) be agreed to.

Motion agreed.

House Committee

Recovery of money wrongly claimed by Members

Motion to Agree

3.07 pm

Moved By The Chairman of Committees

To move that the 2nd Report from the Select Committee on Recovery of money wrongly claimed by Members (HL Paper 238) be agreed to.

The Chairman of Committees (Lord Brabazon of Tara): My Lords, this is a simple report that we hope will constitute the final element of the House's response to the expenses scandal. As noble Lords will be aware, the House has already dealt robustly with those Members found to have abused the system of financial support. However, the House Committee felt it important to ensure that any Members who have not repaid the wrongly claimed money are prevented from returning to the House until they have done so. I hope that noble Lords will agree that it would be inappropriate to restore to such Members the privilege of taking part in the important work of this House and the right to claim financial support until they have settled their debts to the public purse in full.

20 Dec 2011 : Column 1671

Accordingly, this report proposes that any Member who is found by the House to have wrongly claimed money under the system of financial support but has not repaid all of that money by one month before the end of their suspension from the House should receive a further suspension until the money has been paid in full or until the end of the Parliament, whichever comes first. If the debt were still outstanding at the beginning of the following Parliament, then the House would be invited to approve a further suspension and so on. The suspension of an individual under these provisions would be imposed by the House agreeing a Motion in the name of the Chairman of Committees.

I should just mention the role of the Committee for Privileges and Conduct, which I chair. In its sixth report of this Session, the committee stated that the recovery of debt was not a disciplinary matter and therefore did not come within its remit. The committee went on to say that securing repayment was a matter for the Clerk of the Parliaments, consulting the House Committee which oversees the system of financial support for Members. The Clerk duly consulted the House Committee, which noted that the Committee for Privileges and Conduct had concluded in its 2009 report on the powers of the House as follows:

"The House possesses ... an inherent power to discipline its Members; the means by which it chooses to exercise this power falls within the regulation by the House of its own procedures".

In line with this conclusion, the House Committee is now inviting the House to use its existing powers in a new way. I believe that our proposals are appropriate and I commend them to the House. I beg to move.

Baroness Scotland of Asthal: My Lords, I have to tell the House that I am troubled by the Motion that is presented to the House. I am troubled on two bases.

First, I am unclear as to whether the House intends the Motion to have retrospective effect and thereby to reopen decisions made by this House during 2010. Noble Lords will know that a number of cases were dealt with by the Committee for Privileges and Conduct, whose members at that time included the noble and learned Lords, Lord Mackay of Clashfern, Lord Howe of Aberavon-who sits in his place and whom I, too, wish happy birthday-Lord Scott of Foscote and Lord Irvine of Lairg. The decisions arose out of the complaints made by and against a number of Members of this House during 2009. All those complaints were dealt with under the code of conduct made in the fourth report of Session 2007-08, to which I shall now refer as the report on procedure.

The House knows that there was a broad spectrum of complaints about the way in which expenses were claimed by some Members of this House. Each complaint was dealt with on an individual basis and differently. Some Members were asked to apologise in writing; some were asked to apologise to the House; some were dealt with by the Clerk of the Parliaments; some came before the Committee for Privileges and Conduct sub-committee; some came before the full committee; some were dealt with by the police; and some Members were tried and sent to prison. All those cases were dealt with under the old procedure. The variations in treatment are difficult to explain shortly, but it is unnecessary for

20 Dec 2011 : Column 1672

me to go through that history because this House decided, I believe properly, to institute a new, clear and transparent system by which Members would be entitled to receive expenses.

Transgression of the new rules should be clearly and robustly dealt with. Therefore, if the House Committee's recommendation is meant to refer to any future transgression under the new system, I can see the merit of making the position crystal clear to Members as we go forward so that Members will know, if sums are improperly claimed, a Member's return to the House during that Session of Parliament will not be considered until full repayment has been rendered. There will then be no scope for misunderstanding of the rules. However, if the recommendation is intended to have retrospective effect, I have to confess to your Lordships that I have a problem.

The House will recall that in the hearing before the Committee for Privileges and Conduct, the issue of whether there should be a separate sanction for non-payment of moneys improperly received by a Member under the old system contained in the report on procedure was dealt with. The committee said this at paragraph 56 on page 20-and with the leave of your Lordships I intend to quote it in full:

"As a point of principle, and regardless of the circumstances of the present case, we have decided that the length of suspension should not be determined by reference to the time of repayment. Repayment is not a sanction: it is an act of restitution, the returning of money wrongly claimed and paid. The over-riding priority must be that this money should be returned to the House, and thus to the public purse. Lady Uddin's appeal makes the point that she does not have the means to pay so large a sum. We are not in a position to comment on her financial circumstances, but it is clear that the sanction recommended by the Sub-Committee risks having the effect of preventing her indefinitely from returning to the House. Not only is there a danger that an 'indefinite suspension' could exceed the powers of the House, which are limited to suspension 'for a defined period not longer than the remainder of the current Parliament', but there is also a possibility that an indefinite suspension would result in the money never being recovered".

I believe that the Privileges and Conduct Committee's analysis was right in law and in principle. The House endorsed its conclusion, which was proper. The decision of the House was then communicated to the parties. It is contained in full in the sixth report of Session 2010-11, published on 21 October last year. Therefore, the House was specifically asked to determine the issue of principle as it related to the old system and came to a definitive view. I would be troubled indeed if, by this Motion, the House purported to resile from this principle on a retrospective basis. In my view, that would be improper.

The issue of whether a further suspension could be imposed in respect of the non-payment of moneys due came before the newly constituted Privileges and Conduct Committee, of which I am now a member. On 31 October this year, the committee was invited by the House Committee to think again and to review the recommendations made by the previous Privileges and Conduct Committee, of which I was not a member. The noble and learned Lords, Lord Mackay of Clashfern and Lord Scott of Foscote, and I all sat on that committee. We found no basis on which we could properly disagree with the previous committee's legal analysis or with the principles enunciated in the report.

20 Dec 2011 : Column 1673

The Privileges and Conduct Committee specifically includes Members of this House with a legal and judicial background in order to assist the House by making recommendations that are consistent with the rule of law and with fairness.

The second issue that troubles me is whether the House, by using the stratagem of a Motion, intends to circumvent the prohibition that exists in law on suspending a Member of this House permanently. As Members will know, chapter 12.12 of the Companion states:

"The House of Lords does not have the power to suspend a member permanently. A writ of summons, which entitles members of the House to a 'seat, place and voice' in Parliament cannot be withheld".

I respectfully suggest that we should not set ourselves up in opposition to Her Majesty's writ-not least because there is no appeal against our determination. Any suspension imposed by the House can only be temporary and can last only for the duration of one Parliament. I can find no lawful authority that entitles us to act to the contrary. Nor am I aware of any other provision that would enable us so to do.

I am well aware that a sizeable number of Members of your Lordships' House would like the position changed. There is merit in saying that, where a Member has so transgressed as to make it intolerable for them to continue to be a Member of the House, legal provision should be made for their expulsion. But that can be done only by legislation, which we do not currently have.

Therefore, I invite the House to decline to accept the House Committee's recommendation in its current form. If the House wishes to send a clear signal in the future, and I think that it should, there is force in us so doing. However, this Motion should not have retrospective effect and neither should it apply for more than one Parliament unless and until legislation is passed to enable us lawfully to implement a permanent suspension. Your Lordships know that there is no appeal from this House-none at all, not to the EU, not to our courts. We determine our own procedure, we determine what is right, and therefore a heavy burden is put on us. If we wish to be unfair, unjust or immoderate, we are entitled to be so. I know this House too well to believe that that would ever be our intent, so I invite the House not to make a decision in relation to this Motion and to give the House an opportunity to think again.

Lord Scott of Foscote: My Lords, I declare an interest. I was a member of the Privileges Committee, as the noble and learned Baroness, Lady Scotland, has informed the House. The danger of the proposal currently before the House is that it risks confusing two separate matters. On the one hand, the House needs power to impose appropriate sanctions if Members of the House become convicted of dishonourable behaviour of various sorts. The sanction in those circumstances takes the form of suspension from the House and it is in the nature of a punishment for the conduct that has been found to be proved against the Member of the House in question. However, there is an additional factor, which is the repayment to the House of money that the Member of the House owes and has wrongfully obtained. Of course, those two

20 Dec 2011 : Column 1674

different purposes may overlap. It may be that the wrongful conduct was the reason why the debt arose in the first place-there is plainly an overlap-but none the less I think it important that the two should be kept separate.

That was not always the case in the law of this country. Many Members of this House will have read, and many who have not will know of, the Dickens novel Little Dorrit, which is based upon the experiences of a family in the Marshalsea prison, the father being there for a debt that he could not repay. That imprisonment could go on, as I recall, indefinitely. Those sad days are now long behind us. People do not get punished for not paying money that they have not got, and this House ought not to reverse that trend by introducing a sanction that can be imposed for failure to repay money that is owing that the individual has not got and cannot repay.

An individual who is found guilty of dishonourable conduct can expect an appropriate sanction to be imposed by the House proportionate to the gravity of the dishonourable conduct. The individual, he or she, who owes money to the House, which may or may not have been associated with the dishonourable conduct, can be expected to be called upon to repay it. If he or she thinks that he or she has not got the financial resources to manage repayment, then the individual can expect to have to make a disclosure of assets to the appropriate accounting officials of the House to demonstrate that that is so and, maybe, to have to submit to questioning so that the official can satisfy himself or herself that that really is so. The individual, the Member of the House, can then expect to have some recommendation perhaps made by the official as to what should be repaid, what instalments perhaps might be appropriate and so on. But if the end result of a full and frank disclosure, and answers to whatever questions may have been put, is that the individual has not got the assets to repay, or to repay more than a moderate amount fixed by the official, I respectfully suggest that that should be an end of any sanction. A person should not be subjected to an additional sanction that is not available to be imposed on those with the money to discharge their debts if he or she simply cannot afford to pay and does not have the money to discharge.

I believe that the proposal before the House confuses those two separate matters. I, too, would oppose it.

Lord Lloyd of Berwick: My Lords, I support the two speeches that have just been made. I have no worry about those who could pay but have not done so and I support the proposals in the report so far as they go in that regard. But I am concerned about those who are or may become insolvent. It has always been a principle of insolvency law that a person should in due course be able to get his discharge. Thereafter, he is entitled to retain his personal earnings because he must be allowed to support himself and his family. That principle was established in 1872 by Mr Justice Vaughan Williams in the case of Hawkins. I am concerned that the indefinite suspension, which may well be the result of what is before the House, would be against that basic principle of insolvency law.

20 Dec 2011 : Column 1675

Lord Hamilton of Epsom: My Lords, I take a certain amount of issue with the noble and learned Baroness, Lady Scotland. We are not here in a court of law. We are a self-regulating House and we have the reputation of this House to worry about. There seems to be great concern about whether the noble Baroness, Lady Uddin, has the means to repay the amount of money which she seems to have fraudulently claimed. But have we looked into the circumstances of the noble Baroness? I gather that she owns her own house in London. Could she not mortgage that house and repay in that way, or could she not even sell it and buy a smaller one? It strikes me that we are rather taking her at her own word that she is unable to repay this amount of money.

We have the reputation of this House to consider very deeply. If we were to invite her back while enormous sums of taxpayers' money were still owing, I do not think that the British public would understand that in any way whatever.

Baroness Farrington of Ribbleton: My Lords, from listening very carefully, my understanding is that the issue that my noble and learned friend Lady Scotland raised was not specifically to do with the individual case. It was to do with the process of retrospection and those rules that applied at the time that a decision was taken with regard to a particular case. I have not been in your Lordships' House as long as many noble Lords but, from listening carefully, particularly to noble and learned Lords over the years, I know that the issue of retrospective legislation of any sort is anathema to most people in your Lordships' House. I hope that we will not debate this issue with reference to an individual or to whether an individual can or cannot repay. I hope that we will stick entirely to the issue of retrospection.

3.30 pm

Lord Pannick: My Lords, I cannot share the view that there is some retrospective element here. It is not retrospective to apply the proposed suspension to noble Lords who were found to have claimed expenses without good cause, and in some cases such as that of the noble Baroness, Lady Uddin, in bad faith, and who were ordered to repay the relevant sums but who have failed to do so. That failure surely entitles the House now to decide what action it is appropriate to take against them. Paragraph 56 of the Privileges Committee report, which the noble and learned Baroness, Lady Scotland, read out, does not address, as I read it, what should happen if the noble Baroness, Lady Uddin, fails to pay up.

On the noble and learned Baroness's second point, I do not understand this to be a permanent exclusion from the House. The suspension will apply on its terms only for the duration of this Parliament. It will be a matter for the next Parliament to decide whether it is appropriate then to suspend the noble Baroness, Lady Uddin, or any other noble Lord in default if they still have not repaid the relevant sums.

The answer to the point made by the noble and learned Lords, Lord Scott and Lord Lloyd, is surely this: it must be implicit in this report that the relevant

20 Dec 2011 : Column 1676

committee will have a discretion not to take action if it is persuaded that the noble Lord in question does not have the means available to pay the sum. In my view, there is no unfairness whatever in what has been proposed by the committee.

Lord Baker of Dorking: My Lords, I am grateful to be speaking after the noble Lord, Lord Pannick, because I was about to rise with some temerity to take on three distinguished lawyers in this House. However, having been a member of the House Committee for a number of years, particularly during the period of having to deal with this very shameful episode in our history-let us remember that some Members were claiming money fraudulently-I have to say to the noble and learned Baroness that this was all without precedent both for the Privileges Committee and for the House Committee. We were literally living from day to day without knowing what was going to happen as a result of investigative journalism.

The attitude of the House Committee was incredibly scrupulous during the investigations. We did not take into account the personal circumstances of any of the Members involved, or of their religious and political beliefs. We were indifferent in the old-fashioned use of the word in that we were not careless but we were impartial. As a result, it was very clear that the system had to be changed. We brought in the new system, which I hope will avoid these problems in the future. It was also difficult for us, in investigating these cases, soon to discover that we were not the only people conducting investigations. The police and the Crown Prosecution Service were also involved, so it was a complex procedure. As all noble Lords know, certain evidence was produced and conclusions reached, and certain cases became well known in the press. The Privileges Committee, being the committee that deals with matters of discipline, dealt with these, but again if I may say on a very ad hoc basis. There was little precedent for the decisions that the committee had to make and the amount of suspension that it was prepared to grant.

It fell to us, as the committee responsible for the allowances system in the House, to consider one particular case. It was indeed a difficult matter for us and it was debated at considerable length. The position we reached was that we should establish a principle. I believe that the noble and learned Baroness, Lady Scotland, was saying that she rather agrees with our conclusion but that it should be applied only in the future and not to the past. That is the nub of her argument, which I think has been effectively answered by the noble Lord, Lord Pannick. The principle is simply this: that someone in this House who has fraudulently claimed money on an extensive scale should not be allowed to re-enter this House until that money has been repaid. It is not a question of insolvency, and since there is no insolvency in this matter, insolvency law does not come into it at all. Further, we have to be aware not only of our own reputation in this House and in our debates here but of the wider public interest in this matter.

Let us think about what would happen in the private sector in a similar case. If a senior executive in a large company was discovered to have been fraudulently claiming massive expenses on a regular and practical

20 Dec 2011 : Column 1677

basis, thus taking money out of the company, he would almost certainly be subject to instant dismissal. If he were not, he would be suspended and the board would examine the case. I am sure that it would then say that the executive could come back to the company but only if he repaid the money first. That is the principle that we are trying to establish, and I must say that it is entirely fair. We have tried to establish this principle irrespective of how it affects individual people. That is a very important point about a principle. A principle must be just that. I think it is a principle that is widely understood by the country, and I commend it to the House.

Baroness Flather: My Lords, I have heard the arguments and I think that I have understood them. As a lay person, it seems to me that if you have no means to pay back money that you have taken fraudulently, it does not excuse you. It does not excuse you in normal life and it should not excuse you in your Lordships' House. A large amount of money, £125,000, has been taken. It takes a long time to take that much money out of expenses in your Lordships' House. We cannot just overlook that and say, "It's all right", because the noble Baroness, Lady Uddin, cannot repay. Well, she can borrow; she can get a loan; she can see where she has money-she has money in Bangladesh; and she should pay back the money to Parliament and then discharge whatever borrowing she has made. You cannot be excused because you are too poor. I am sorry, but I cannot agree with that idea.

Lord Richard: My Lords, the noble Baroness, Lady Flather, has in a sense put her finger on it. We have no procedure in this House for assessing whether someone in these circumstances is capable of repaying. If the noble Baroness, Lady Uddin, cannot in all conscience repay this money because she does not have it, I would not be in favour of penalising her in the way that she is being penalised. If on the other hand she can repay it and is deliberately not doing so, it seems to me that the decision that the House is being asked to make is perfectly proper. There is a gap. We have no procedure for determining what her circumstances are, and it would have to be done in a quasi-judicial way. I wonder whether the way out today, because this is a very troubling matter, is for the Chairman to take the matter back to the committee and see whether we cannot institute some form of sensible procedure for determining the basic question of fact upon which, in the end, this matter depends.

Lord Alderdice: As a member of the committee, I toiled with other members of the committee over this very difficult question, on which it is not easy to become entirely clear. Noble Lords who were on the Privileges Committee have to some extent confused the role that they very properly exercised at that time-exercising discipline in respect of an offence that had happened-with the quite different responsibility of the House Committee to address not a matter from the past but a current problem of continued and ongoing indebtedness to your Lordships' House. Therefore, I agree entirely with the noble Lord, Lord Pannick, that it is not a retrospective matter but a current matter, and that the indebtedness continues. It

20 Dec 2011 : Column 1678

is not clear whether the person's failure to repay is intentional or because there were no other possibilities, although I know in my part of the world that it has not been entirely unusual for people to have their fines paid for them, never mind their debts. That is not an area in which we can necessarily get involved.

However, there is a further matter. Comparisons have been made with Dickens and debtors' prisons and things of the kind. This is not a private club; it is not a company; it is part of the legislature of this country. It is not a right for us to be here; it is a responsibility for us to be here and to fulfil that responsibility on behalf of the country.

I have no doubt in my mind how the country would regard a Member of your Lordships' House who continued not to repay debts that should never have been incurred in the first place. I know what the country would say about speeches, votes, questions and interventions by a noble Lord-indeed, I do not think that people would regard such a person as a noble Lord at all. We have the reputation of your Lordships' House to consider in this matter.

Noble Lords will, I am sure, have read the report and will understand that when the noble and learned Baroness, Lady Scotland, talked about there being no right to permanently suspend a Member, she was of course right. However, the report makes it clear that this can last only until the debt is repaid and until the end of the Parliament. If it is still unpaid in the next Parliament, the next Parliament must then make its decision. This is not permanent; it is dependent on the repayment of a current debt, not the punishment of a past misdeed. Therefore, it is highly unlikely that the House Committee could properly return with anything other than the recommendation that it has thoughtfully made to your Lordships' House today.

Lord Dobbs: My Lords, this should be a day of great joy for me because it is exactly a year ago today that I entered this House, but because of this desperately sad issue there is no joy. I listened closely to what the noble and learned Baroness, Lady Scotland, said. Of course, this is a heavy burden that we undertake, but I cannot agree with her that this is retrospective. When a fine is imposed, it is meant to be repaid. There is an explicit understanding in that. Repaying a fine is not a voluntary gesture.

I hope that the noble and learned Baroness will forgive my impertinence, because she has far greater legal experience than me, when I say that she has made a fundamental error. For all the legal learning, she has construed an argument that would never be accepted by a jury of ordinary men and women. A Peer who had misappropriated public funds and not repaid them is not a victim. He or she cannot expect simply to walk back in as if nothing had happened; £125,000 is not a drop in the ocean, it is a huge figure. How many decades does a state pensioner have to wait until they get anywhere close to that sort of total?

The Chairman of Committees is entirely right. What he proposes is sensible, measured and just. I also happen to believe that it is in the best interests of the noble Baroness, Lady Uddin. I wrote an entirely personal letter to her some time ago, but I thought it appropriate that I should not say anything in public that I would

20 Dec 2011 : Column 1679

not have said to her directly. I urged her to take into account that if she were to rush back here without having repaid her outstanding dues, she would find herself subject to huge public and press hostility. It would do her and this House only further harm. I have not had a reply and perhaps I should not expect one, but if she would only let it be known to the House that she will not rush back and has no intention of claiming more money, perhaps there would be no need to take the action that we are proposing to take today. However, she has not, so I fear that we must. I hope that she will bear in mind-

Lord Elton: I do hope that your Lordships will stop personalising this case. We are addressing a matter of principle not a particular case.

Lord Dobbs: Indeed, my Lords, but the matter of principle involves individuals. The noble and learned Baroness, Lady Scotland, herself admitted that when she was the first to raise the issue of the noble Baroness, Lady Uddin.

Baroness Scotland of Asthal: Can I make it absolutely clear that the submissions that I made for the House to consider were matters made in relation to law and principle and did not refer to any individual? Indeed, I recited verbatim the paragraph in the Committee for Privileges and Conduct report, which said that the committee was deciding a point of principle and not in relation to any particular Member.

3.45 pm

Lord Dobbs: Yes indeed, my Lords, but, if she will forgive me, it was the noble and learned Baroness, Lady Scotland, who first raised the name of the noble Baroness, Lady Uddin, in this debate. It is all very well talking about principle, but we have to be aware of the practical implications of these matters.

I hope that we will all bear in mind that most people beyond Westminster will not be asking themselves why suspended Peers should not be allowed back until they have repaid their debts, but will be asking, simply and bluntly, why they should be allowed back here at all.

I agree with the noble and learned Baroness, Lady Scotland, that, at some point in the near future, we may have to go further in looking at the self-regulatory powers in this House, but we have to deal with the situation as it is today. I know how much care the members of the Committee took, and how much sadness it gave them to come to their conclusion. I can do nothing but commend them for the difficult job that they have done extremely well.

Baroness O'Loan: My Lords, I will make two brief points. First, I support the analysis of the noble Lord, Lord Pannick, of the impact of the report of the House Committee in this case. Secondly, this House is funded by the public purse and our ongoing membership of this House costs the public purse. That is relevant to this debate and the situation in which we find ourselves. It is a matter of the integrity and credibility of the House. We need to consider all factors. It is not a matter of personality; it is a matter of fairness.

20 Dec 2011 : Column 1680

Lord Soley: My Lords, I wish to follow up a number of points. First, this is a question of principle. We know about the individual concerned, but it is a question of principle, and if we allow this to go through as we are suggesting today it will apply in other situations. That is problematic. I agree that the image outside is appalling, but, occasionally, you have to look at other, wider issues besides simply responding to what the public image is. Indeed, politics involves people in doing that from time to time.

Secondly, it is important to understand what I think my noble friend Lord Richard has put his finger on. I say this as a non-lawyer. This House is not a court of law. If it was a court of law, this would be a bit easier. I suspect, however, that a court of law would not be able to do what is being recommended today, as it would not have the lawful authority to do so. In effect, this is a retrospective form if not of punishment, at least of an order. I want, therefore, to suggest where that leads us. If we are not a court of law, but we in some way regulate ourselves, as is being suggested-and I understand that and the reasons why-then there is an important fact that we have to bear in mind. If this was a company or organisation outside, when such events happened and a person was disciplined and punished in the way that we are doing, he or she could then go to court if they felt it was unfair for whatever reason. The court would then decide whether that organisation had acted properly. We cannot do that, because nobody can go to court as a result of an unfair punishment from here. They cannot even go to the European court over it, so there is no appeal mechanism.

What would happen if we were a court of law? I assume-and again, I am speaking as non-lawyer-that a decision would be made, and the person concerned, if they felt it was unfair, might at that stage argue their case and so on. If they did not pay, the court would bring them back as it would with a fine that had been imposed, for example, and would either order goods to be possessed or, alternatively and more normally, conduct a means inquiry. As I understand it, although I am not a lawyer, that is where the Charles Dickens case comes from: there was a feeling that you had to inquire into a person's means to find out whether the non-payment was deliberate or because they could not pay. We do not have a mechanism for doing that. We are trying to behave at one level as though we are a court of law, but then not giving ourselves the powers to do what a court of law would do. We are also saying that we are going to impose this punishment or condition-whatever you wish to call it-on a Member, but that that Member will have no recourse to the law.

I felt very uncomfortable when I began to look at it yesterday, or the day before. We are doing something, as a point of principle, that is deeply undesirable. We have to clarify, in our own minds, that if we are not going to be a court of law-and we cannot be-we need to have a system that follows through; when we impose a punishment or condition, or whatever we call it, we have to have a mechanism for deciding how that is done. We should not do that retrospectively, because a court of law could not do that. I will feel uncomfortable if this House gives itself powers that we do not think a court of law should have; yet does not give itself the

20 Dec 2011 : Column 1681

power to inquire into means when they are relevant, as in this case. I personally would not support this Motion approving this report as it is today, and I ask the House to consider taking it away and thinking again about this important issue of how, if we are not a court of law, we impose our sanctions; and how we then ensure that the sanction we impose can realistically be delivered, and delivered fairly. That is the issue we have to face. That is the principle-and it even overrides the great public feeling there will be on cases like this.

Lord Filkin: My Lords, I am struggling to understand, let alone have sympathy for, some of the sophistry that is being argued against the House Committee's report. It seems, I think, to most of us in this House that a wrong has been committed, restitution ought to be possible and the person ought to make restitution. We should not welcome somebody back to this legislature until that has been fulfilled. The House Committee could hardly have brought in any other recommendation than the one it has, and we should support it without further debate.

Lord Hunt of Kings Heath: My Lords, I thank the noble Lord the Chairman of Committees for introducing the report from the House Committee this afternoon. It is with regret that we have to revisit an issue that has done great damage to the reputation of your Lordships' House in relation to money wrongly claimed under the system of financial support for Members.

The public interest and reputation of Parliament require that these matters are dealt with in as rigorous a way as possible. A number of Members of your Lordships' House have found themselves subject to investigations-in some cases by the authorities and in some cases by the relevant mechanisms of your Lordships' House. In a small number of cases Members of this House have been suspended. In two cases, investigation by the authorities has led to prosecution and custodial sentences. The House has had, through a very, very difficult period, to consider the adequacy of its mechanisms. Changes have subsequently been made, both to the system of financial support for Members and to the code of conduct governing membership of your Lordships' House. I pay tribute to the work of those involved in dealing with these matters. I believe the rules produced and decisions reached were sensible. They are worthwhile provisions and have been of benefit to the House during a very difficult period for Parliament as a whole, including this House.

My noble and learned friend Lady Scotland, with her customary eloquence, has put forward a number of very serious points this afternoon. The noble Lord, Lord Pannick, made the point that suspension of a Member of Parliament from this House under any such Motion would be for the lifetime of the Parliament, and a further Motion would have to be brought at the beginning of the next Parliament. I understand the point my noble friend has made in relation to retrospective provision. Noble Lords will always be very wary of retrospective legislation and rightfully so, but there is, in effect, a different interpretation in the report before us today from the House Committee. That has identified a gap that needs to be filled. The sixth report from the Committee for Privileges and Conduct in October 2010

20 Dec 2011 : Column 1682

stated that the recovery of money wrongly claimed was not a disciplinary matter and not a matter for the committee. However, as the noble Lord the Chairman of Committees stated in his opening statement in that report:

"We therefore recommend that it is for the Clerk of the Parliaments, as Accounting Officer, consulting the House Committee as necessary, to consider what arrangements with Lady Uddin may be necessary to secure repayment of this sum to the House".

In essence, the House Committee has now brought forward its advice in the form of an invitation to this House to agree a clear principle that a Member should not return to the House while still owing money. In the end, that principle is in the public interest. I cannot disagree with it and I will be supporting the recommendation of the House Committee.

Lord Laming: My Lords, I will not detain the House for more than a few minutes because I support the Motion that is before it. The House will know that I have been a member of the relevant committees for only a relatively short time, but I bring to them many years, sadly, of experience of dealing with disciplinary matters in the public services. Sad to say, that experience has taught me that these matters often involve conflict and sometimes considerable distress, which is made more serious when the people involved may be known to us personally.

However, I have an overriding impression of the way in which the House Committee has dealt with this matter and I support entirely the comments made by the noble Lord, Lord Baker, in saying that the committee has approached this matter from the point of view of principle, not from that of personality. It has gone out of its way to try and be fair, but every Member of this House will know that being fair in these circumstances is not a simple matter. Of course, one wants to be fair to the individuals involved but there is also an issue of being fair to your Lordships' House and, more than that, of being fair to the taxpayer. The money does not belong to your Lordships' House; it belongs to the taxpayer and it should be returned to the taxpayer.

Over the years, sad to say, I have dealt with many instances when taxpayers' money has been wrongly claimed. The first responsibility of any organisation dealing with matters of this kind, particularly a public organisation, is to seek to recover the money-and to seek to do that recognising that it has to make a decision in the circumstances in which it now finds itself. I believe that the House Committee has both been reasonable in these matters and adopted a stance which tries to be fair and to reflect the seriousness with which the public would view this situation if we did not endeavour to recover the money. This does not imply permanent suspension from the House. I commend the Motion to the House because I believe that it is a reasonable, fair and sensible course of action to take.

The Chairman of Committees: My Lords, perhaps the House feels that we should come to a conclusion on this matter now. I feel a little daunted in facing the first three noble and learned Lords who spoke in the debate, particularly the noble and learned Baroness, Lady Scotland, but I am glad to say that some of the points that were made have already been answered by other noble Lords.

20 Dec 2011 : Column 1683

On the question of retrospectivity, which the noble Lord, Lord Pannick, answered very well, this is not retrospective because the sanctions agreed by the House last year related to the original breach of the expenses scheme. The House is today being asked to approve the principle that any Peers who subsequently fail to repay the money which they have been found to owe should be suspended for that reason and that reason alone. I should say to the House that this is a report in generality, not a report about any particular Peers, so I rather regret that a number of names have been mentioned at this stage. That may or may not come up later; as the report says, a further Motion will have to be moved in the new year.

The second point related to the Privileges and Conduct Committee. It is true that that the committee did not believe that the length of suspension which it recommended should be determined by reference to repayment and that it rejected the idea of an indefinite suspension. However, the House Committee's proposals to suspend Members until they have repaid is not a second punishment for abusing the system. It is related to the failure to repay, which falls within the remit of the House. Neither is it an indefinite or permanent suspension; what we propose is a carefully defined suspension that can be ended as soon as the Member in question pays up.

Moreover, we are not thwarting the writ of summons because, as the noble Lords, Lord Pannick and Lord Alderdice, said, at no point would we be suspending a Member for a period longer than the remainder of the Parliament. A further suspension early in the following Parliament would be a separate suspension, not a continuation of the earlier one. As a number of noble Lords have said, it may be that we should legislate in future for longer than that but that would need new primary legislation.

Lord Soley: On that point-

The Chairman of Committees: I will give way once.

Lord Soley: The report says:

"If money remains outstanding at the start of the following Parliament, the Chairman of Committees should move a further motion to initiate a further suspension".

I want to be clear: is the committee taking the view that in future Parliaments we should do this all the time? Is that the recommendation?

The Chairman of Committees: If the money had not been repaid, the issue would be up for a new Motion by the Chairman of Committees at the beginning of the new Parliament. The Peer in question would already have received their writ of summons and would be able to come to the opening and so on, but then the Motion might go ahead.

Another point made by noble Lords, particularly the noble and learned Baroness, Lady Scotland, and the noble and learned Lord, Lord Lloyd of Berwick, was that the system is discriminatory against people who do not have the money. I accept that less wealthy Members may struggle to pay off their debts to the

20 Dec 2011 : Column 1684

House, but of course they should not have made their wrongful claims in the first place. Moreover, I do not think it would be right to means-test errant Members and then make special concessions to those who could not afford to pay. The House Committee believes as a matter of principle that Members who have cheated the taxpayer of money should not be allowed to take part in proceedings of the House or claim any further money until they have repaid their debt in full. How they might raise that money is a matter for them.

A number of noble Lords, including the noble Lord, Lord Richard, suggested that we should take this back and have another look at it. I will resist that temptation. As my noble friend Lord Baker said, the House Committee spent a great deal of time looking at this in detail. This is the conclusion that we came to and which I recommend to the House. I beg to move that the report be agreed.

Motion agreed.

Draft House of Lords Reform Bill

Motion to Agree

4.02 pm

Moved By Lord Strathclyde

That, notwithstanding the Resolution of this House of 6 July, it be an instruction to the Joint Committee on the Draft House of Lords Reform Bill that it should report on the draft Bill by 27 March 2012.

Lord Higgins: My Lords, I suggest to my noble friend that some explanation of this Motion might be of interest to the House.

Lord Strathclyde: My Lords, of the many Motions that I have moved in the House, I would have thought that this one would be almost entirely self-explanatory. The House will remember that last July both Houses of Parliament agreed to the creation of a Joint Committee of both Houses to examine the Government's draft Bill on the future reform of the House of Lords. In that Motion, the Joint Committee was due to report by March 2012. At that time, a number of questions were raised about whether the Joint Committee would be able to report in that time, and I indicated that if it wished to have an extension it would be able to ask for one. A few weeks ago, the noble Lord, Lord Richard, the chairman of the Joint Committee, wrote to me and indicated that it would need some more time and suggested the date of 27 March. All this Motion does is extend the time available to the Joint Committee by about a month to take us to 27 March 2012. I hope that that is a sufficient explanation of the Motion before us.

Lord Cormack: My Lords, what is the point of all this if the Deputy Prime Minister tells the world that he intends to force through legislation, invoking the Parliament Act, regardless of what the committee might say? We had a contempt of Parliament committed yesterday and I would be grateful if my noble friend would indicate that the committee will indeed report properly, that its report will be debated and that no one, least of all someone who wants to treat the

20 Dec 2011 : Column 1685

constitution as his own personal plaything, should be allowed to usurp the functions of a committee of two Houses.

Lord Strathclyde: My Lords, I might have expected my noble friend to speak, but I think he is being unnecessarily intemperate. It may be a surprise to him to hear that what the Deputy Prime Minister said yesterday was not new at all. He had said it once or twice before. In fact, I said something similar last June in this House. It is surprising how quickly all these things are forgotten. I said:

"Therefore our intention is to introduce a Bill next year and to hold the first elections to the reformed House in May 2015".-[Official Report, 21/6/11; col. 1155.]

The Deputy Prime Minister yesterday was simply following my lead. In the light of that, I do not think there is anything too much to worry about, although, of course, there is a process before a Queen's Speech is brought to this House. However, the really important thing that my noble friend asked about was whether the report of the Joint Committee would be taken seriously. I can say unequivocally that it will be taken most seriously.

Lord Richard: The noble Lord, Lord Higgins, asked for an explanation. The Joint Committee has been meeting regularly and is considering this Bill in a full and detailed way. It is being given full and detailed consideration. All I am saying is that we need another month to continue with that full and detailed consideration, at the end of which we will no doubt produce a report.

Lord Grocott: Following that comment, will the noble Lord the Leader of the House make it clear that, should the Joint Committee find that it cannot reach a conclusion by the new date that has been set-many of us anticipated that that would be the case when it was set up-the timetable under which it operates will not be determined by what is required for the Queen's Speech, the date of which has still not been announced? In particular, can he tell the House-I cannot recall this ever happening before-whether the second most important Minister in the country has announced the Government's flagship policy for the next Queen's Speech even before the date when that speech should take place has been determined? In order to regain propriety, rather than following what seems to be a make-it-up-as-you-go-along policy, and having told us the most important content of the next Queen's Speech-in the Government's estimation, not mine-will the Leader of the House help us by at least giving us the relevant date?

Lord Strathclyde: My Lords, it is always nice to hear that the noble Lord, Lord Grocott, is the guardian of the Government's conscience. I can assure him that my right honourable friend the Deputy Prime Minister is not the first keen Minister to wish to pre-empt Queen's Speeches and make sure that there is a clear case for his Bill, nor will he be the last. The date of the end of this Session, and therefore the date of the beginning of the next Session, will be announced a few weeks before in the normal way, following well-worn precedent. The noble Lord, Lord Richard, spoke extremely

20 Dec 2011 : Column 1686

eloquently a minute ago. No doubt he and his committee came up with the date of the end of March because they believed that it would be possible to achieve that date. I am sure that Members of the committee will hear this debate and will have seen what was in the papers yesterday. I very much hope that we will not need to extend any longer the time that we have to wait for this report.

Lord Elton: Can my noble friend the Leader of the House tell me on what other occasion a senior member of the Government has announced in advance that he is going to use the Parliament Act?

Lord Strathclyde: My Lords, I am not aware that my right honourable friend said that he would do so. He used words about the will of the House of Commons; and the Parliament Act is of course part of a process that kicks in when the two Houses disagree with each other. It is a well understood process, and although it has perhaps not been well used, it has been used on many occasions. It is always of regret to me when Parliament Acts are used because I believe that, between the two Houses, there must be a better way of reaching agreements.

Lord Ryder of Wensum: My Lords, my noble friend has been exceedingly patient. Would it not be wise for us to close this debate on the grounds-on which we are united-that the speech made yesterday by the Deputy Prime Minister showed only a veneer of expertise?

Lord Strathclyde: My Lords, I will not be tempted down that road by my noble friend.

Baroness Symons of Vernham Dean: My Lords, I congratulate the Leader of the House on the skill with which he has dealt with the remarks of the Deputy Prime Minister. The noble Lord has answered them in exactly the way that they merited.

Lord Strathclyde: I am very grateful to the noble Baroness.

Lord Pearson of Rannoch: My Lords, further to the remarks of the Deputy Prime Minister, can the noble Lord at least clarify whether it would be constitutional for the Government of the day to use the Parliament Act to radically reform and change your Lordships' House without its consent?

Lord Strathclyde: My Lords, the Parliament Act is a matter of statute law. It is our view that it would be illegal to use the Parliament Act when changing the composition or powers of this Chamber.

Baroness Walmsley: Does my noble friend the Leader of the House agree that it should not surprise any noble Lord that the Government wish to bring forward legislation to realise a matter that was in the manifestos of every single major party in the last election-and that we should get on with it?

20 Dec 2011 : Column 1687

Lord Strathclyde: I share with my noble friend her surprise that there is any surprise at all.

Motion agreed.

Electricity and Gas (Carbon Emissions and Community Energy Saving) (Amendment) Order 2011

Electricity and Gas (Carbon Emissions and Community Energy Saving) (Amendment) Order 2011
4th Report from the Joint Committee on Statutory Instruments

Motion to Approve

4.12 pm

Moved By Lord Marland

That the draft Order laid before the House on 21 November be approved.

Relevant Documents: 34th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 14 December.

Motion agreed.

Legal Aid, Sentencing and Punishment of Offenders Bill

Legal Aid, Sentencing and Punishment of Offenders Bill
21st Report from the Constitution Committee
22nd Report from the Joint Committee on Human Rights
21st Repors from the Delegated Powers Committee

Committee (1st Day)

4.12 pm

Relevant documents: 21st Report from the Constitution Committee, 22nd Report from the Joint Committee on Human Rights, 21st and 22nd Reports from the Delegated Powers Committee.

Clause 1 : Lord Chancellor's functions

Amendment 1

Moved by Lord Pannick

1: Clause 1, page 1, line 5, leave out subsection (1) and insert-

"( ) The Lord Chancellor must secure (within the resources made available and in accordance with this Part) that individuals have access to legal services that effectively meet their needs."

Lord Pannick: My Lords, the amendment is in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton. It is an appropriate amendment with which to begin the Committee stage of this important Bill.

As the debate at Second Reading indicated, there is considerable concern about the contents of Part 1. There is widespread acceptance that in tough financial times legal aid must bear its share of the cuts in public expenditure and that the Government have to make difficult choices. However, there is widespread concern about the wisdom of the choices that are being made in Part 1 and whether it is appropriate to limit legal aid so extensively for those sections of the community that are most in need of advice and assistance to obtain the legal rights and benefits to which they are entitled.

20 Dec 2011 : Column 1688

The amendment seeks to focus this Committee's debate on the contents of Part 1, and seeks to remedy a considerable defect in Clause 1. The defect is that the clause fails to mention that the objective of Part 1 must be to secure access to justice, to protect the needs of individuals and to do so in an effective manner. Clause 1 fails to recognise that our debates about the content of Part 1 should take place in the context that legal aid is a vital element in securing access to justice, and that without access to justice, the rights and duties which we spend time creating in this Parliament by legislation are reduced in value and effect.

The drafting of Amendment 1 is closely based on Section 4(1) of the Access to Justice Act 1999, which imposes duties on the Legal Services Commission. When the Bill transfers those responsibilities into the Lord Chancellor's Department, the primary objective of securing access to justice by effective means to meet needs must be retained in the Bill. That point was made in the report of your Lordships' Constitution Committee, of which I am a member.

I very much hope that the Minister will be able to tell the Committee that he can accept the amendment. It is carefully drafted to recognise, as does Section 4(1) of the 1999 Act, that the duty to provide access to services in order to meet needs is not absolute. It is a duty defined by reference to the resources available. The drafting does not impose an independent duty which trumps the specific contents of Part 1. On the contrary, it says expressly,

"in accordance with this Part".

I hope that the Minister will be able to accept the amendment as doing no damage whatever to the specific clauses which we shall be debating later in Committee. At the same time, the amendment ensures that the Bill recognises the vital principle which always has been and which should remain at the heart of our legal aid provisions: a commitment to providing access to justice. I beg to move.

Lord Faulks: My Lords, I support the amendment. As the noble Lord, Lord Pannick, explained, the current drafting is a change from the wording of the Access to Justice Act 1999 and the amendment makes it clear that the Lord Chancellor has an obligation to secure the access to legal services that meet the needs of the individual. That was recommended by the House of Lords Constitution Committee, although the amendment contains an important modification in that there is a qualification that the provision of legal aid must be on the basis of resources,

"made available in accordance with this Part"-

Part 1. In other words, there is no absolute requirement on the part of the Secretary of State to make legal aid available regardless of the financial situation.

I understand the purpose behind the Bill, which is, first, to save approximately £350 million as a contribution to reduction in expenditure generally and, secondly, to make some important changes to the litigation system as a whole. Although legal aid and the amendment are concerned with Part 1, it cannot be viewed in isolation, particularly not from Part 2, which brings about changes in current conditional fee arrangements. The need for

20 Dec 2011 : Column 1689

those changes is clear. As recently as yesterday, a Court of Appeal judge observed at the end of the case that it was another case in which,

"the existence of a conditional fee agreement has made it practically impossible to obtain a settlement".

He went on to observe that, ultimately, it is the public who pay for these things, either through higher premiums, or through the unwarranted expenditure of public resources.

Access to justice means satisfactory access not just for claimants but also for defendants. My reading of the purpose of some of the amendments put forward by the Front Bench of the party opposite is that they are intended substantially to maintain the status quo. This is somewhat surprising in view of the widespread acceptance of the undesirable effects of the current system, not least by Mr Jack Straw, former Secretary of State for Justice, in debates in the other place. I suggest that some of these amendments will actually impede access to justice.

There is an additional benefit from this amendment, apart from the clarity that I hope it provides. Our law is generally subject to the Human Rights Act-in particular, Article 6 of the convention, which provides for the right to a fair trial. How an individual state decides to reflect this principle in its provision of legal aid or some other form of assistance is, I suggest, very much for that state to decide, and it should be well within the so-called margin of appreciation-theoretically, at least-permitted by the courts in Strasbourg. There have been cases where in one context or another the lack of legal aid has been found to violate Article 6, although it might be said that the jurisprudence in this area lacks some coherence. However, this amendment should make such challenges far less likely to succeed in that there is a clear statement of the Lord Chancellor's obligation and, contained within it, a sensible acknowledgement of the limits provided by available resources.

The Lord Chancellor said in an interview with the Guardian, published yesterday, that the Bill was concerned with,

"protection of fundamental rights of access to justice for critical issues that no civilised society can do without".

I suspect that all in your Lordships' House would agree with that aim. It is an aspiration that should inform our debates on the Bill in Committee in the weeks to come, and I suggest that this amendment is a good beginning.

Lord Howarth of Newport: My Lords, the Constitution Committee did us, as it always does, a good service in reminding us and stating emphatically that access to justice is a constitutional principle. The amendment that it proposed to Clause 1, which would say that the Lord Chancellor must secure that legal aid is made available in order to ensure effective access to justice, would be a humdinger of an amendment. It would reassert absolutely and emphatically the fundamental constitutional principle of equal access to justice for all our people. The amendment that the noble Lords, Lord Pannick and Lord Faulks, and others have tabled and placed before us is not the same as that amendment. They have chosen to qualify the requirement on the

20 Dec 2011 : Column 1690

Lord Chancellor by including language about his obligation being only within the resources made available for the purpose. The noble Lord, Lord Pannick, also said that in his view the duty was not absolute, although a little later in his remarks he said that access to justice was a vital principle. I am not clear exactly what the degree of obligation on the Lord Chancellor would be.

It certainly seems to me that if the legal aid budget is to be cut by £350 million, it may not be possible within the resources available to secure access to justice. I am beginning to wonder whether the noble Lord, Lord Pannick, and his very distinguished co-signatories, all of them lawyers, may find themselves in somewhat the same position as the revolutionary students in Paris in 1968, whose motto was "Demand the impossible". It is very exciting to demand the impossible but the prospects for your proposition are not necessarily very good. At all events, I am a little confused about exactly what their amendment would require of the system, and I wonder whether there is not some sort of internal conflict within the amendment.

For my part, I believe that the duty on the Lord Chancellor and the Government should be absolute. If equal access to justice is a fundamental constitutional principle, then I believe that we, as citizens and taxpayers, should pay whatever it reasonably takes to secure it. The legal aid budget, running at some £2.2 billion, is a lot of money. On the other hand, as I mentioned at Second Reading, £2.2 billion is only around 1 per cent of the social security budget and the £350 million cut to the legal aid budget that is being proposed by the Government would, I think, be 0.2 per cent of the deficit, about which all of us are very properly exercised.

I think it is disputable whether the existing legal aid budget is unaffordable. If we believe that it is a fundamental constitutional principle, we could afford to pay what it costs. Of course, costs must be disciplined and the previous Labour Government were severe on that matter. I was not entirely happy when the former Prime Minister, Mr Blair, spoke of his intention to,

"derail the gravy train of legal aid",

because I believe that a great many legal aid lawyers are working for pretty small remuneration and are not riding on any kind of a gravy train. Nor was I entirely in agreement with the tone and the sentiment of my right honourable friend Jack Straw when he spoke of,

"BMW-driving civil liberties lawyers".

Of course, it must be right-this is very much the intention that the Lord Chancellor declares in his article in the Guardian today-to attack lawyers who are drawing entirely excessive remuneration out of work that may be funded by legal aid.

My noble and learned friend Lord Irvine of Lairg, when Lord Chancellor, mounted a vigorous attack on the cost of the legal aid system. He attacked the costs but he did not attack the principle. The Government are right, of course, to examine the costs. If it costs £120 million to run the Legal Services Commission, then that commission must be a candidate for economy. However, I am sure that noble Lords will agree here, as elsewhere, that we should not throw the baby out with the bathwater. We are speaking of a fundamental constitutional principle, of a fundamental entitlement for our citizens. Can we speak of a fundamental

20 Dec 2011 : Column 1691

constitutional principle in the context of an unwritten constitution? I believe that we can, and so I think does the Constitution Committee of your Lordships' House because it quoted the noble and learned Lord, Lord Steyn, and Lord Bingham speaking very eloquently about the right to equal access to justice.

Noble Lords will be very well aware of the Sir Henry Hodge Memorial Lecture, given by the noble and learned Baroness, Lady Hale, in June. I had the privilege and pleasure to listen to that lecture, in which she told us that the principle of equal access to justice is to be found in the Magna Carta:

"To no one will we sell, to no one deny or delay right or justice".

That is a principle that has been established cumulatively through our history. She told us that a statute of 1494, in the reign of Henry VII, provided for actions to be brought in forma pauperis, relieved from court fees and provided with lawyers acting pro bono. Then later in our history, there was the famous case of Ashby v White, the Aylesbury election case in 1703, when Lord Chief Justice Holt, in his judgment said:

"If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of a right and want of a remedy are reciprocal".

Some noble Lords may have read an excellent and informative article in the London Review of Books, on 20 October, by Joanna Biggs, who traced some of the history of the establishment of the right of equal access to justice. She describes how, in 1944, Henry Betterton, who, like the right honourable Kenneth Clarke, the Lord Chancellor, was a barrister and indeed a Conservative Member of Parliament for Rushcliffe, was appointed to chair a special committee on legal aid and legal advice. In his report in 1945 he said:

"The great increase in legislation and the growing complexity of modern life have created a situation in which increasing numbers of people must have recourse to professional legal assistance".

The free legal aid that was at that stage available was, he said, at best somewhat patchy and totally inadequate. He recommended that in the future legal aid should be available not just for the poor but for people of small or moderate means. People who could afford to do so should contribute to their legal costs. Barristers and solicitors were to be paid adequately. There should be legal aid centres across the country. That was the vision that underlay the Legal Aid and Advice Act 1949. That legislation was widely recognised as being part of the structure of the new welfare state that was being created by that Labour Government.

4.30 pm

The case was made that to provide legal aid was a particular and inescapable responsibility of the state. In the construction of the welfare state, the Government sought to construct defences and remedies against the five giants-want, disease, ignorance, squalor and idleness -but it was recognised that Governments had only some limited responsibility for the depredations of those five giants. On the other hand, it is Governments who make the law and, correspondingly, Governments inescapably should have responsibility for ensuring that there is legal remedy.

20 Dec 2011 : Column 1692

That, I believe, became orthodoxy. By 1979, 79 per cent of the population qualified for legal aid. As the noble Lord, Lord Faulks, reminded us, there was at the same time Article 6(1) of the European Convention on Human Rights, which stated:

"In the determination of his civil rights and liabilities or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an impartial tribunal established by law".

The noble and learned Baroness, Lady Hale, points out that access to a court is not much use without access to lawyers. Therefore, it seems to me that the provision of legal aid is implicit in Article 6(1) of the ECHR.

Our constitution is uncodified but the evolution of our political and legislative history has brought us to a point where equal access to the law is deeply entrenched in the national sense that our citizens have of constitutional entitlement and political propriety. This Bill is, I am afraid to say, one more instance of the coalition Government playing fast and lose with our constitution and with cherished constitutional principles.

The noble and learned Baroness, Lady Hale, told those who were listening to her that the text of Magna Carta is engraved on the glass doors of the library of the Supreme Court. She said that that library contains a collection of statutes, of decided cases and legal writings from which the judges discover the law. In her words,

"Our library shows the world that we are not making it up as we go along".

Equally, I would maintain that politicians are not entitled to make up the law as they go along. That, I believe, is the Diceyan heresy. The sovereignty of Parliament, the omnicompetence of statute, should not be a charter for legislative caprice, for ethical anarchy. It is not for politicians to make up statute as they go along or to jettison principles of law as they go along. Governments and Parliament should respect the widely accepted, cherished principles of our constitution, felt and known to be such by our citizens even if they do not articulate them to themselves in clear words. They are an inherited and shared concept of just institutions, reflecting the British sense of fairness. We should not casually throw over the heritage of legal principles to which the judges have such necessary and profound regard.

I am struck that the Conservative Party demands insistently that the European Union should respect our national identity. Intrinsic to our national identity is the common law and access to justice with support through legal aid. And yet the Conservative Party seems willing to disrespect that national identity in the measures that it brings forward for us at home.

Justice and fairness are elusive concepts that are difficult to articulate. For that very reason it is all the more necessary not to introduce radical change to the justice system without national debate and national consensus. The Government may reply that there is a national debate and that they produced a consultative Green Paper to which there were 5,000 responses. I would reply-

20 Dec 2011 : Column 1693

Lord Lester of Herne Hill: I do not mean to prolong the noble Lord's speech by my interruption, but perhaps I could suggest that it is not helpful to his case if he becomes narrowly partisan. This is not an area where any one party can claim a monopoly of virtue or vice. It is much better to focus on what unites the House rather than what divides it.

Lord Howarth of Newport: I hope to be able to do that. I hope that I have not been unduly partisan, but we all feel strongly on this issue and I very much hope that noble Lords on the Liberal Democrat Benches, who I understand feel strongly on the issue, will explain their case to us and, when it comes to voting in the Division Lobby, will act according to their professions. Perhaps in that remark I am becoming a little too party political-for which I apologise to the Committee.

If the Government say that a national debate is taking place, I would reply that the 5,000 responses to the Green Paper demonstrate that there is a very strong consensus against what they propose and that they would be wrong to defy that consensus.

Baroness Butler-Sloss: Perhaps I could ask the noble Lord a question. I listened with great care to what he said. It would be extremely helpful to know where his argument is directed. Is it intended to support or oppose Amendment 1?

Lord Howarth of Newport: I will come to that in a second. The noble and learned Baroness will be pleased to know that I am about to wind up. We should all be grateful to the noble Lord, Lord Pannick, for tabling an amendment that challenges us to debate the principles against which the detailed amendments should be judged.

I conclude by saying that I believe that the Government have no mandate for what they seek to do. They have no political or moral authority and no permission from the people to take away their right of access to justice and to dismantle that part of the justice system. It would be a dereliction of our constitution if the Government and Parliament were not to resolve to spend the money that is genuinely necessary to secure access to justice for all. I do not know whether the noble Lord, Lord Pannick, will press his amendment to a vote. If he does I will certainly support it. If he does not, I hope that when we come back to the issue on Report, he or others will table an amendment that fairly and squarely insists on the fundamental principle. If they were to table the amendment proposed by the Constitution Committee in all its principled directness and simplicity, that would be preferable.

Lord Carlile of Berriew: My Lords, speaking as a liberal from the Liberal Democrat Benches, it is with regret that I say that I support the amendment in the name of the noble Lord, Lord Pannick. I support it with regret because I had hoped that we would not be in this position by the time we started Committee. Noble Lords will recall the Second Reading debate at which unfortunately I was not able to be present because I was out of the country. Since that debate there has been private and public negotiation, lobbying,

20 Dec 2011 : Column 1694

a great deal of journalism and an expectation that we would move from the position that was expressed from the government Front Bench at Second Reading. However, I detect absolutely no hint that any concessions will be made. Indeed, I detect an air of irritated intransigence coming from the Ministry of Justice in relation to the Bill.

I would not feel driven to vote for the amendment of the noble Lord, Lord Pannick, and to take the same position as my noble friend Lord Faulks from the Conservative Benches on the coalition side, if I felt that there was some movement in the direction of the general principle set out in the amendment. Furthermore, as the noble Lord, Lord Pannick, explained, this is not an expression of a new principle, nor is it an expression of a principle that is to be applied outside the context of this very Bill. It seeks merely to set out a principle that I believe every person in this House should embrace within the Bill's in effect financial constraints, which are expressed in the amendment.

I, as a liberal and a Member of the Liberal Democrats, have understandably-like, I am sure, my noble friend Lord Faulks-been encouraged not to cause difficulties, not to intervene too much and not to obstruct the Government in getting their Bill through; in other words, I have been encouraged to support this coalition Government, which I would very much like to do. However, I have detected an assumption that Liberal Democrat Peers are to support the Government's approach to this Bill, and I say to my noble friend Lord McNally that it is not sufficient to make us wait to find out later what concessions are to be made on the many representations that have been made.

I agree wholeheartedly with the Government that a great deal of legal aid money is being wasted at present. I believe that fervently, and I could identify, and indeed have identified when asked, areas in the legal aid system where savings could be made. However, arguments have been made for concessions in areas where access to legal services is required as the only way, in effect, to meet the needs of people whose rights have been adversely affected. If my noble friend wishes us not to support this amendment, I invite him to tell us when he replies to this debate the areas in which concessions are to be made and the general nature of those concessions, not the particulars. In other words, I am asking my noble friend not merely to assume our support from these Benches but to earn our support from these Benches. Without that, I am afraid that I shall remain dissatisfied and will feel free to intervene during these debates on the merits of these amendments.

Lord Ramsbotham: My Lords, I briefly support the amendment by echoing the words that have already been quoted-those of the Lord Chancellor, who said:

"access to justice is a hallmark of a civilised society",-[Official Report, Commons, 15/11/10; col. 659.]

and those of my noble friend Lord Pannick, who has said repeatedly that access to justice is a vital constitutional principle.

At Second Reading, I regretted that the word "rehabilitation" had been replaced by the word "punishment" in the title of this Bill, and I fear that the proposed denial of legal aid to some for whom its

20 Dec 2011 : Column 1695

provision is a vital part of their rehabilitation suggests that there are some in government who are allowing an uncivilised concentration on punishment to supersede their duty to protect the public. I know that this is a hybrid Bill and that Part 3 will concentrate on rehabilitation, but I wish I felt the same of Part 1.

Baroness Mallalieu: My Lords, I wonder whether others felt, as I did, that what the noble Lord, Lord Carlile, just said was music to the ears.

Of the amendments currently tabled to this Bill, I regard this amendment as by far and away the most important, and it is one that I strongly support. It provides the litmus test of what the Government are really trying to achieve with legal aid. This part of the Bill has been presented to us as a cost-saving measure that, in today's climate, is hard to oppose, but as it stands it is far more than that. As others have said, Schedule 5 to the Bill repeals the fundamental principles of legal aid, which appear at present in the Access to Justice Act 1999. By removing them under Schedule 5, the Government have removed their obligation to supply legal services, to make sure that they are available and to make sure that the means of accessing them are available to those in need. They are, in effect, casting away two of the most vital parts of our constitution and essential ingredients of a just society. They are, first, equality before the law and, secondly, the principle that no one should be denied access to justice through lack of means. The omission of an overarching statement of principle at the start of this Bill signals that the Government no longer wish to honour that obligation. If the obligation does not rest on the Government, it does not in reality rest, or exist, at all.

4.45 pm

The Minister, the noble Lord, Lord McNally, is a highly experienced politician. For many years, he was a distinguished Labour Member of Parliament. Then he was a much respected Social Democrat. Now he is, of course, a Liberal member of the Conservative coalition Government. It is inconceivable that the Government's obligations have been omitted from this Bill by accident or by his inadvertence. The core values that he embraced as a Labour MP, a Liberal Democrat and a liberal are surely those that are embraced by the two basic principles that I have just outlined.

There is no reason to suspect that the noble Lord has changed his personal views or has abandoned that liberalism, except for one thing. It is a remarkable coincidence that many, but not quite all-I cannot resist this-Home Office Ministers in recent years underwent an extraordinary change in their attitudes on assuming office. Indeed, some say that there is a small room in the Home Office to which new Ministers are taken and where, probably at dead of night, a small chip is inserted in the back of the neck, after which, for the duration of their time in office, they become automatons doing the bidding of Home Office officials and the Treasury, and abandoning all shred of earlier stated principles of liberty and justice. Whether the noble Lord, Lord McNally, has been on the receiving end of this treatment is something that we will shortly discover, but I very much hope that he has not.

20 Dec 2011 : Column 1696

I hope that in his dealings with this Bill, the noble Lord will stand by those principles, which I believe he held earlier and which his party claims to hold to this day. If he cannot accept this amendment today, at the very least I hope that he will go back to his department and to those who are less liberally minded in his office and put his foot down. If he does not, our constitution is in danger, under his watch, of changing very much for the worse as a result of this Bill.

Lord Elystan-Morgan: My Lords, 43 years ago, I was a Home Office Minister but I doubt very much whether the procedures that have been so dramatically described by the noble Baroness were current in those days.

I rise to support wholeheartedly this amendment and to salute the courageous and most splendid speech of the noble Lord, Lord Carlile. This amendment goes fundamentally to the heart, core and kernel of what we mean by justice, the rule of law and the fundamental constitutional principles that govern Parliament. If one looks at that splendid book, The Rule of Law, by the late Lord Bingham, which was published last year, the right to justice where a person has a reasonable cause is utterly fundamental. In the immortal words that he used, one of the ingredients of the rule of law itself was that,

"means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide disputes which the parties are unable themselves to resolve".

He went on to say that,

"denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law".

No one could put it more splendidly than that. Indeed, it is on that basis that the Constitution Committee has attacked the elements which seek to undermine legal aid. The clear recommendation made by the committee on this clause was that:

"Clause 1 should be amended to read: 'The Lord Chancellor must secure that legal aid is made available in order to ensure effective access to justice'".

I consider those words in the light of the amendment moved by my noble friend Lord Pannick.

On the one hand, one can see that a distinction can be drawn between the two. One is in absolutist terms while the other is in qualified terms. But I do not think that the Committee need worry a great deal about that. The words chosen by my noble friend have already been enshrined in statute in the Access to Justice Act 1999, and all that we are doing is saying that we wish to take the House and the British community back to the mentality which supported the Access to Justice Act. In doing that, I wholeheartedly respect and support this amendment.

The idea that access to justice is a constitutional right has been spelt out in the courts. In 1994, in the matter of R v Secretary of State for the Home Department, ex parte Leech, Lord Justice Steyn ruled in the Court of Appeal that the,

"principle of our law that every citizen has a right of unimpeded access to a court ... even in our unwritten constitution ...must rank as a constitutional right".

No one could put it clearer than that. It means, therefore, that any substantial impediment to the reasonable exercise of that right is something that

20 Dec 2011 : Column 1697

undermines the very concept of our constitution, unwritten though it be. I can well imagine that the Deputy Leader of the House, the noble Lord, Lord McNally, will say, "Well, these are difficult times. Everyone has to react to the crisis and to accept responsibility which is joint and several in respect of all of us". I can understand that, but I would say in reply to such a submission that, first, no credible and enlightened Government in our day and age can ever stand before the world and say, "We are too poor to be able to afford justice". Secondly, it is almost certain that the net saving in respect of the £350 million which the Government claim will be slashed from the legal aid bill will either be a very small saving or no saving at all. We will debate these matters in the months to come and there is ample evidence in support of that proposition.

Lastly, let us remember what the situation was in 1949 when the Legal Aid and Advice Act was passed. Britain had emerged from a terrible war bloodied, weakened and practically insolvent. John Maynard Keynes was sent to the United States to negotiate on the best terms possible a loan that it took many decades to repay. The Americans absolutely screwed us and, as we know, it was only a few years ago that that loan was repaid. The Government of the day in 1949 could have said, "We are so impoverished and reduced in our strength that we cannot conceive of such a luxury as legal aid", but they did not.

Lord Goldsmith: My Lords-

Lord Goodhart: My Lords-

Lord Goldsmith: I rise to support this amendment for reasons which I will explain-

Lord Goodhart: My Lords, it is the turn of this side, but I wait with pleasure to hear what the noble and learned Lord has to say.

When I started my career as a barrister in the late 1950s, we had started with legal aid for only a few years. Up until then, aid from lawyers to poor people who were prosecuted for criminal offences mostly came from a group of barristers of poor quality who spent their time sitting in the court in the hope of being chosen by the defendant to defend them. Legal aid replaced all that, for civil cases as well as criminal, and we must never get anywhere near the previous situation.

This amendment is one of the most important in the Bill; indeed, it is in many ways the most important. The right of access to justice is a central feature of British justice, as it has been for centuries. We are rightly proud of that. We have over the years achieved the right of access to law. Now that right is under threat. Clause 1(1) is not adequate. This is made clear by the 21st report of the Select Committee of your Lordships' House on the Constitution, published on 17 November. That is a very distinguished committee. The four Members who have put their names to Amendment 1 include two members of that committee, the noble Lords, Lord Pannick and Lord Hart. They also include the noble and learned Lord, Lord Woolf, the former Lord Chief Justice and an outstanding

20 Dec 2011 : Column 1698

judge of recent times, and, finally, my noble friend Lord Faulks, who is a relatively new Member of your Lordships' House but who has proved his high quality as a lawyer and a politician.

I am aware that in recent years the costs of legal aid have risen too far. This was recognised by Lord Bingham in chapter 8 of his book, The Rule of Law, which has already been mentioned. Steps are being taken by the Government to reduce costs in a justifiable way, but we must make it clear that access to justice is essential and that we cannot set up in this country a legal system which does not provide access to justice to those who cannot afford it out of their own pockets.

Lord Goldsmith: My Lords, I am glad that the noble Lord, Lord Goodhart, went before me, because I can wholeheartedly agree with the last sentiment that he has expressed-I am not surprised that we share that view.

Before I speak about my hesitation in respect of the amendment, I should declare, because I was unable to take part at Second Reading, that I am a practising lawyer, though not a publicly funded lawyer for a long time. I am also chairman of the Access to Justice Foundation and president of the Bar Pro Bono Unit, two organisations which try to help people who have legal need through the generosity of lawyers who are prepared to do that for free.

My reason for being hesitant about the amendment is that it does not go as far as the Constitution Committee, of which I am proud to be a member, said it should. There is a qualification of importance in the amendment, which is the reference to available resources. I was concerned that allowing that qualification might allow the damage to be done to the legal aid system and the access to justice that so many people need that we are fighting for.

I recognise the constraints. I also recognise that this was a formulation which the Government of whom I was a part put forward-I was not that happy about it then either, as it happens. However, there is a reason why I shall support the amendment: it is a way of testing what the Government actually believe in. It is a way of testing whether this Government are prepared to sign up, on the basis that there is not a blank cheque, to the principle that the Lord Chancellor has an obligation to secure justice for those who need it and to make sure that it is secured effectively. I do not believe that the noble Lord, Lord McNally, has a computer chip in his neck-I hope that I have known him long enough to know that that is not the way he operates-but I shall look forward with interest to two things during this debate. The first is what he says about this amendment. It will be telling in the extreme if he is not able to accept that, even though there will not be a blank cheque and even though it depends on the resources being available, his department should acknowledge a duty to secure that individuals have access to legal services that effectively meet their needs. That is a constitutional principle that the Government should at least support.

Secondly, I will look to see the answers to individual amendments and the issues that arise in relation to particular aspects of the Bill. For example, I am very

20 Dec 2011 : Column 1699

concerned about welfare, where so much of the resource at the moment is provided not to well paid lawyers, barristers in Chambers or City firms of solicitors, but to legal advice centres. They are agencies that work on a shoestring and depend on legal aid, so much of which will be cut to them. The Government should be judged on the attitude that they take to that-not more fat for the fat cats, but helping the poor people of the country, the vulnerable and the less privileged, and ensuring the rights that it is one of the jobs of this House to provide.

5 pm

Lord Alton of Liverpool: My Lords, the noble and learned Lord, Lord Goldsmith, was born in inner-city Liverpool. I had the privilege of representing part of that city for 25 years, first as a city councillor and later, as the noble Lord, Lord McNally, knows, as a Member of the House of Commons. Liverpool is one of the more deprived and economically disadvantaged parts of this country. Therefore, not as a lawyer but as someone who knows communities that have been socially disadvantaged and where access to law and justice is crucial, I spoke at Second Reading strongly against the proposals in the Bill.

I want today to support my noble friend's amendment because, like the noble Lord, Lord Goodhart, I believe that it goes to the very heart of what the Bill is about. It demands the perfectly possible. It is perfectly possible because it is what we do already. Unlike the noble and learned Lord who has just spoken, I turn the attention of Members of the Committee not to the word "resources" but to what the amendment says at the end. It says,

"that individuals have access to legal services that effectively meet their needs".

To oppose the amendment and vote it down would be for us to say that people should not have access to legal services that effectively meet their needs. Do we really want to turn the clock back to those pre-1949 days that my noble friend Lord Elystan-Morgan spoke about a few moments ago? We are all aware of the five giant evils that the noble Lord, Lord Howarth, mentioned in his remarks that were identified by Lord Beveridge. It was Hartley Shawcross who, from the Labour Benches in 1949, introduced the legal aid provisions. Hartley Shawcross was the Member of Parliament for another Merseyside seat, St Helens.

By way of illustration, the Liverpool Law Society wrote to me recently about what would happen if the provisions in the Bill were to be enacted, and one of the examples comes from St Helens. It involves a long-distance lorry driver who died of lung cancer after a mistake was made in his diagnosis. The settlement was made with his widow after commissioning significant experts' fees. Under the new regime, the Liverpool Law Society said that the client,

"would not have been in a position to fund any disbursements to enable an investigation to be taken forward".

That is only one example of many that I have been given of people who for one reason or another, particularly because of changes to legal aid, would no longer be able to get that crucial access to justice that is available in this country at present.

20 Dec 2011 : Column 1700

The Bar Council says that it is,

"profoundly concerned about the impact that the Bill's proposals could have on access to justice, particularly for some of the most vulnerable members of society".

The point is underlined by the Law Society, which said that,

"the Bill ensures that serious injustice will be done ... Clients with physical or mental health deficiencies, or low levels of education, may be unable to resolve their problems in the absence of support through legal aid".

It is worth reminding the Committee what Lord Justice Jackson said when he examined the proposals and came out very strongly against any cuts in legal aid. He said:

"I ... stress the vital necessity of making no further cutbacks in legal aid availability or eligibility ... the maintenance of legal aid at no less than present levels makes sound economic sense and is in the public interest ... On the assumption that it is decided not to maintain civil legal aid at present levels, the question may possibly arise as to whether any particular area of civil legal aid is particularly important and should be salvaged from the present cuts. My answer to that question is that of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate".

We have heard several references to the Committee of your Lordships' House. The House of Commons Justice Committee stated that the Government are in error in failing to undertake a comprehensive assessment of the knock-on costs arising from the cuts to legal aid. In other words, this is penny-wise but pound-foolish. This is a point borne out by Action Against Medical Accidents. Indeed the noble Lord, Lord Carlile, who spoke so eloquently earlier on, chaired a meeting at which I and other Members of your Lordships' House, including the noble Lord, Lord Howarth, were present, where Action Against Medical Accidents said that in order to save the Ministry of Justice just £11 million it will cost the NHS at least £14 million and possibly as much as £21 million.

This is what the House of Commons Committee said:

"We are surprised that the Government is proposing to make such changes without assessing their likely impact on spending from the public purse and we call on them to do so before taking a final decision on implementation".

We still have a chance between now and Report to do that. As the noble Lord, Lord Carlile, said he would be, I will be looking for a signal from the government Front Bench today of reasonableness: a willingness to re-examine whether or not the propositions that have been put to us by the Bar Council, the Law Society, practising lawyers and people who have represented disadvantaged communities hold up and are up to scrutiny. It is in that context that we should return our sights to the amendment before your Lordships today, proposing that,

"individuals should have access to legal services that effectively meet their needs".

When we come to vote we will be voting on that proposition. Unless I hear from the Front Bench that it is prepared to look at this again between now and Report, I will join my noble friend in the Lobby.

Lord Newton of Braintree: My Lords, it is probably my turn, if my noble former constituent will allow me. I have been stimulated, not for the first time and I

20 Dec 2011 : Column 1701

hope not for the last, by some of the speeches in this debate. First, the noble Baroness, Lady Mallalieu, reminded me of how grateful I was that, in 18 years as a Minister, nobody ever sent me anywhere near the Home Office. I do not know whether or not I would have withstood it, but I am glad that I did not have to be tested.

Secondly, the speech of my noble friend Lord Carlile was absolutely spot on. I have not had the same experience as he has of being pressurised by the Whips: they have given up on me. I am glad to support him, because we need some signs of movement in the speech that will be made at the end of this debate. I say to the noble Lord, Lord Pannick, that I would much prefer it if this amendment were treated as putting down a marker to see what response we get and that we should judge things in the light of what may happen later on with the Bill as well as what is said tonight. In that respect, I have a lot of sympathy with what the noble and learned Lord, Lord Goldsmith, said. But we need something less than irritated intransigence, as my noble friend Lord Carlile put it, from the Ministry of Justice in the way that it responds to the concerns in the Committee. We should make that very clear tonight. In other words, if we do not get some sense of willingness to move then we should return to this on Report. Meanwhile, I look forward very much to a constructive response from my noble friend.

Lord Phillips of Sudbury: My Lords, I-

Lord Clinton-Davis: My Lords, may I? That side has just been speaking.

Baroness Verma: My Lords, let us hear first from the noble Lord and then from my noble friend.

Lord Clinton-Davis: My Lords, I would like to ask the Government a simple question. What do the Bar Council, the Law Society and the organisations concerned with poverty with regard to legal services have to say? Have the Government taken the trouble to consult these organisations? The noble Lord says that they have. So what is their reply? They remain obdurately opposed to the principles that the Government are putting forward today. I unhesitatingly support the amendment. Pretty well all the speeches in the Committee-whether from the Conservative, Liberal Democrat or these Benches, and on the Cross Benches-have expressed opposition to what the Government are trying to do and support for what the amendment stands for.

I also unhesitatingly support the remarks of the noble Lord, Lord Carlile. He has spoken very bravely, and has been supported by several noble Lords who share his profession. A bevy of Silks have announced support for the proposition advanced by the amendment. I got involved with legal aid from pretty well the very beginning, because of a very simple notion-I thought it was imperative that ordinary people should be able to advance their cause and, where they are impaired from doing so, they should be supported by the state. That was my view then. The amendment sets out very clearly, within the constraints that are necessarily imposed upon us, the basic principles that we should preserve.

20 Dec 2011 : Column 1702

It is vital that individuals should have access to legal services, where their rights are being seriously impaired or are not being properly advanced-subject always to the provisions of the 1999 Act. There is a serious risk that both of these will occur, separately, under the changes to legal aid provision now being contemplated. I am surprised that any person of any sensitivity-and I think that the noble Lord, Lord McNally, would fall into that category-would support such changes. I have always had great admiration for the noble Lord-I do not know why, as he has done his best to impair that decision on my part. It is not a question of party prejudice at all; it is a question of downright decency and that is what I support today.

Lord Phillips of Sudbury: My Lords, one could be in danger of being slightly sentimental about the Access to Justice Act. Some in this Chamber will remember it very well and opposed it very strongly. I called it the "Exit from Justice Act". However, I recognise that legal aid is a sort of Cinderella of the welfare state and is a very difficult service to defend in terms of public opinion, for reasons that I advanced at Second Reading and which I do not propose to repeat. However, I will just say that I am, always have been and always will be, passionately committed to the legal aid scheme. Without an effective legal aid scheme the legislation we produce in this place can be viewed as cynical. To legislate rights knowing that a large number of those for whom they are intended do not have access to them must be a form of cynicism. Having said which, the Government are placed in an extremely difficult position, and there is no jibbing the fact that all departments of state have to bear some part of the cuts which the Government have determined are essential for our economic well-being. I am one who concurs with that judgment.

5.15 pm

I will say this only: I am anxious about the way in which the noble Lord, Lord Pannick, has drafted his amendment. I think it was in the 1970s that I first instructed the noble Lord, when he was a junior at the Bar. He will know from times past that I have always valued his advice since, and my firm continues to do so. However, on this one I am not at all sure that the noble and learned Lord, Lord Goldsmith, has not touched upon a flaw, and a rather serious one, in this qualification that the Lord Chancellor has to secure these services,

"within the resources made available".

That seems to let any Government completely off the hook. If they make fewer resources available, that is it-finito. In fact, this is a rather dangerous amendment because, with that qualification in it, it seems to weaken perilously the clear obligation that would otherwise exist under the Bill to meet at least those services that are in the schedule, which by the end of this process we will have preserved.

To put it more plainly, if these scheduled legal aid services which are in future to receive the aid of the state are made subject to the availability of resources, they cease to be absolute entitlements. I am extremely anxious about this formulation and would not personally support it.

20 Dec 2011 : Column 1703

Lord Clinton-Davis: There must be some restriction. I unhesitatingly support the legal aid system but there has always been an understanding, has there not, that the amount of resources which are available must be consonant with what we can afford?

Lord Phillips of Sudbury: The noble Lord has just made the case for the Government rather succinctly. That is the argument; what I am saying is that if you put the qualifying phrase,

"within the resources made available",

into Clause 1, then everything is subservient to it. At the moment, the legal aid cost rises and falls-it usually rises but occasionally falls-according to the demands of the citizen upon it within the scope of legal aid availability. As I say, with this phrase in it the Government could say at the start of the year, "We are not paying out more than blank pounds for legal aid", and that would be that.

Lord Goldsmith: Perhaps I might say to the noble Lord that I was concerned about precisely that point. I look to the noble Lord, Lord Pannick, and indeed to the Government, but I hope that the answer is in the requirement that it should be secured,

"in accordance with this Part",

and that that therefore means that those things which I, too, hope will be in the Act at the end of this Bill's passage will have to be secured, and will not be subject to any monetary qualification. I hope that that is the answer as it was part of my reason for taking the view, after my hesitation, that I would support the amendment.

Lord Phillips of Sudbury: I refer the noble and learned Lord to the fact that the sentence within the brackets which qualifies the obligation of the Lord Chancellor to secure includes the words,

"within the resources made available and in accordance with this Part".

If they are in conflict-namely, that the resources made available are insufficient to meet the demands of this part of the Bill-then we are in a bit of a muddle, are we not?

Baroness Kennedy of The Shaws: My Lords, my starting point was the same as that of my noble and learned friend Lord Goldsmith, in that I, too, felt very alarmed that this amendment seems to be too concessionary because it was acknowledging too much on the resource front. However, I acknowledge now that it pins down the question of whether there is a constitutional issue here. If there is, it has to cut across all the areas of law.

I was always battling the previous Government over their cuts to legal aid because of what they meant to quality. What concerns me about the Bill is that it takes whole sections of law out of the purview of legal aid so that medical negligence is not included, and nor are family matters unless there is domestic violence. It is the business of creating whole areas that are not covered by legal aid that is a source of alarm to me, and that is met by the amendment. If you are committed constitutionally to access to justice, you cannot create whole areas that are excised from legal aid. That is how I would read it now.

20 Dec 2011 : Column 1704

There are two things I want to say pre-emptively before the Minister stands up to reply. First, one of the things that is always said by the Minister responding on issues like this about legal aid is, "Look how many lawyers have spoken", as though somehow or other we are the beneficiaries, we are all in this great trade union and we are basically protecting a closed shop. I say to the noble Lord, Lord McNally, known to us all as a decent and fair man, that it is not surprising that lawyers will by and large be the people who speak on this. We know from our work in the courts that it is the poor who will be disadvantaged. It has been my experience while acting in the courts that the disadvantaged will always be those with few resources. We have to make provision for them. That is what access to justice is all about; we know that from our experience. This is nothing to do with protecting the interests of lawyers.

Secondly, on looking for cuts, I have always said to the Government, and I said it to the previous one, that there are other areas where we can make savings. It has always been a source of amazement to me that when the Government need lawyers-for example, when Treasury Counsel sought representation for different government departments-they are not paid at legal aid rates; they are paid at commercial rates. They are paid the sort of money that the corporate sector pays its lawyers. If we want to save money, we should be making serious savings in what government departments pay lawyers for representation. It was always a source of amusement to me that when the Hutton inquiry took place and the Prime Minister at the time, Mr Blair, needed representation, it was to Mr Sumption that he turned-one of the most expensive barristers around. I do not think that it was Mr Blair's own purse that paid the bill; it was the taxpayer. I would like to see the Government making cuts with regard to the lawyers that they choose to represent them and that pocket of money distributed to those who really need representation-the poorest in our society.

We are concerned that there is a constitutional issue here. Whole areas of law should not be taken out of the purview of legal aid.

Baroness Butler-Sloss: My Lords, I wonder whether I might make some brief comments, bearing in mind the time. I would like to add to what has been said. It has largely been lawyers who have spoken, and I very much hope that noble Lords will not give less weight to the names on this first amendment or to the lawyers who have supported it. That is, as the noble Baroness, Lady Kennedy, has just said, inevitable because we know what goes on on the ground. As a former judge, hearing mostly legal aid cases, I have clear knowledge of what happens on the ground.

The lawyers who have spoken are all very distinguished. They have done a great deal in the past and indeed are still doing it. What they have to say should resonate with all Members of this House because these are not party political issues. I very much hope that no noble Lord will make them party political issues. Seeing as people have spoken from all sides of the House, it would be good if no one spoke any longer in a party political way. This issue is too important for us to do so.

20 Dec 2011 : Column 1705

To recognise and accept the amendment would not drive a coach and horses through the Bill. On the contrary, it recognises financial restraints and in my view is very shrewdly phrased. I do not believe that it has the effect that the noble Lord, Lord Phillips of Sudbury, was suggesting. There is nothing to stop us dealing with other areas where we would say it is necessary to have legal aid and it would not be possible for the Government to say that such legal aid should not be forthcoming. However, one has to recognise reality. We have to recognise that not every aspect of the current legal aid bill can continue to be paid. There are areas highlighted by amendments-some of them my own and some from other noble Lords-which we have to look at and say that there should not be cuts. One example of that is private law.

This amendment sets out in simple language the right of citizens to have access to justice in general terms. It is an amendment that would be extremely difficult to oppose and I strongly support it.

Lord Lester of Herne Hill: My Lords-

Lord Hylton: My Lords-

Baroness Whitaker: My Lords-

Baroness Verma: My Lords, if we could hear from the Liberal Democrats, the Cross Benches and then the Labour Party.

Lord Lester of Herne Hill: My Lords, many years ago, when Lord Scarman was chairman of the Law Commission, I remember him saying that his cleaning lady came to him one day and asked whether he could help her with a social security problem. He described how it took him three days of combing through the social security legislation before he was able to help her. He told us this story because he was explaining how there was an enormous need for poverty lawyers-the ones who deal with the legal problems of the poor-to be empowered to provide those services. If a Law Lord such as Lord Scarman took three days to do what a law centre could do more quickly, it illustrated the point.

The great virtue of the amendment of the noble Lord, Lord Pannick, is its conspicuous moderation and realism. I cannot understand those noble Lords who criticise him for being so moderate and realistic. The real value of his amendment is that it strengthens the hand of the Lord Chancellor and Justice Secretary in his dealings with the Treasury. Many years ago when I was Roy Jenkins's special adviser, I remember that Barbara Castle, a Minister in the then Government, explained why she supported cuts in civil legal aid. She wrote to her colleagues saying that if she had to choose between hospitals and legal services, she would unhesitatingly preserve hospitals. It is that notion that legal services for the poor are a soft target and matter a great deal less culturally and politically than health services which is at the bottom of the problem in my view.

20 Dec 2011 : Column 1706

Successive Governments have found it very easy to sabotage civil legal aid since the original Legal Aid and Advice Act was passed. This is not a party political problem; it has pervaded all parties. The noble and learned Lord, Lord Irvine of Lairg, who, unfortunately is not in his place, cut legal aid when he was Lord Chancellor, and followed a long line of Lord Chancellors in doing so. He attacked what he called fat-cat lawyers to justify some of the cuts that he made. When Lord Taylor's memorial service was held in St Paul's cathedral, Sir Humphrey Potts, in giving the encomium-I recall that the noble and learned Lord, Lord Irvine, was at the front of the cathedral-made a joke at his expense, saying that he saw that he, in a fit of post-retirement remorse, was attacking fat-cat lawyers. It was a good joke but it illustrated a powerful point. It would be very easy for my noble friend Lord McNally when he replies to make some cynical remarks about his legal friends standing up for the closed shop. However, I am sure that he will not fall into this trap. As the noble Baroness, Lady Kennedy of The Shaws, has said, those of us who are here today are not in the platoons of legal services for the poor lawyers who will be most hit by these cuts, along with their clients.

5.30 pm

---